Judge Grants Padilla Access to Lawyer

Morphine007 writes "A judge has ordered that Jose Padilla be allowed to see his lawyer, and all I can say is it's about fscking time, I especially like the quote: "Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct further 'dialogue' about whether he is permitted to do so.""

Comments

Story is a troll

[Anonymous Coward]

Fucking terrorists don't deserve lawyers regardless of where they come from.

Who fucking cares?

[Anonymous Coward]

So some wannabe raghead SPIC gets his lawyer.

STOP THE FUCKING PRESSES!!!!!
Fuck you michael. I hope you die tonite on the road

My Rights Online??

[SN74S181]

What does this have to do with Online Rights?

Can't it be posted under a relevant topic, whatever that would be here on a 'News for nerds' website?

Re:My Rights Online??

[PurpleFloyd]

This has a lot to do with Your Rights, online or not. It has been considered a basic right of a prisoner to have legal counsel available ever since the US was founded. Bush and his pals trying to take that away has very far-reaching implications on the entire US legal system.

After all, if someone is detained without counsel for allegedly trying to blow up a plane, what's to say they couldn't be detained without counsel for allegedly trying to hack a government website? I don't condone either action, but people should have the right to represent themselves in court, and access to someone who can advise them on legal issues. Anything else is just a show trial, where the verdict is decided before the trial begins.

Re:My Rights Online??

[neocon]

The problem with that argument is that it has also been the law of the land, since the earliest days of this republic, that prisoners of war are not criminal suspects, but fall in a different category.

This includes enemy soldiers acting within the United States, even if they legally have citizenship. As early as the Jefferson and Madison administrations, this fact was used to detain port saboteurs working in the service of the French government.

So this is not a new practice, and indeed, it is a practice which the Supreme Court has upheld for two centuries. This most recently came to the test during World War II, when a team of German saboteurs were landed from Submarine on Long Island, with a mission to plant bombs in power plants, industrial centers, and Jewish-owned businesses. They were caught, and held as prisoners of war, and the Supreme Court was asked to review this detention, as one of those caught was a US citizen who had travelled to Germany in the thirties in order to join the SS.

The Supreme Court ruled that their detention was lawful, as their intention to commit acts of war against the US made them enemy combatants, not criminal suspects. You can find more information on the case, named Ex Parte Quirin, including a transcript of the court's ruling in this journal entry.

So in short, this is not, as you suggest, a new practice, nor is it, as you also suggest, against the intent of the Constitution (something that Madison, who employed the practice himself as president, presumably knew a thing or two about).

Re:My Rights Online??

[SN74S181]

So you don't have an answer. It has nothing to do with online rights. It has to do with civil rights, obviously, but that wasn't my question.

Maybe YRO should be renamed 'The Indymedia Satellite Section' or something.

Re:My Rights Online??

[elmegil]

So a man not apprehended on a battlefield is a POW how?

Oh wait. Since we're fighting the "war on terrorism" the world is our battlefield, and ANYONE can be accused of terrorism and summarily stripped of their rights as a US citizen (completely arbitrarily I might add, given that John Walker Lindh who WAS found on a goddamn battlefield was given full constitutional rights to legal representation etc...but wait, Pedillo or whatever else you wanna call him isn't a White Suburban Boy with Parents Who Have Money to Fight for Him!).

No potential for abuse there at all....

Re:My Rights Online??

[neocon]

Looks like you didn't read the post you are responding to at all.

In Ex Parte Quirin, the Supreme Court ruled that Nazi infiltrators caught in the US did not cease being enemy combatants simply because they were caught here.

So please, go read the post you just responded to, then respond if you have something on-topic to say.

Re:My Rights Online??

[elmegil]

I think there's a clear and obvious difference between an open war a la WWII and the nebulous "war on terrorism" which appears to let the government pick and choose who is and isn't an enemy combatant, even if they were caught on a battlefield--see the case of John Walker Lindh.

Arguing that Pedillo gave up his rights because the government alleges (hasn't even proven in a court yet, apparently) that he was a terrorist is hypocrisy of the highest order, when Lindh didn't give up his rights after being caught with a gun on a battlefield.

But of course what else can we expect from the judicial system where money buys a good verdict (Lindh, OJ, the list goes on....)

Re:My Rights Online??

[Ivan Raikov]

This includes enemy soldiers acting within the United States, even if they legally have citizenship. As early as the Jefferson and Madison administrations, this fact was used to detain port saboteurs working in the service of the French government.

No, you're wrong. The Constitution protects the rights of all American citizens and legal residents, except in time of war. However, the United States is not at war, no matter what Chimpy likes to think, because only Congress has the right to declare war, and it hasn't.

The French spies you refer to were not citizens. Jose Padilla is.

As for the German spy, allow me to remind you two things: 1) war was declared against Japan by the United States on December 8, 1941; and, on the 11th, Germany and Italy declared war against the United States. 2) the German saboteurs were tried by a military tribunal, and so had the opportunity to defend themselves in open court, rather unlike Padilla.

Also note that the Constitution makes very specific provisions about aiding the enemies of the United States in times of war; the current administration has blatantly ignored and perverted these principles to serve their own political interest.

Re:My Rights Online??

[orthogonal]

The problem with that argument is that it has also been the law of the land, since the earliest days of this republic, that prisoners of war are not criminal suspects, but fall in a different category.

And when did the government prove, with due process of law, that Padilla is a P.O.W.?

He wasn't detained pursuant to any combat, nor did he surrender to any member of any military force.

He was arrested in O'Hare Airport, in Chicago (not a military zone, last I checked), by civilian police.

Padilla is a U.S. citizen, arrested in the U.S., wearing civilian clothes and with no connection to any foreign military -- other than that claimed by an enemy of the U.S. under interrogation, and techoed by the administration.

Allowing the administration to decide that anyone is an enemy combatant, just because they say so, is far more of a threat to American liberties than any terrorist.

Re:My Rights Online??

[neocon]

Perhaps, but the Supreme Court (most recently in Ex Parte Quirin, and two hundred years of precedent, going back to the detention of French port saboteurs by Jefferson and Madison, disagrees with you.

In other words, you are the one proposing a drastic change in the law, not Bush. That's a perfectly valid thing for you to do, I suppose, but then you had better approach the problem as such, and present articles for the change you think should be made.

Before you argue that a declared war is needed for detention of POWs, though, ask yourself the following: `should we not have been able to detain any POWs caught in the attack on Pearl Harbor, had their been any, because they were caught the day before war was declared?'

Re:My Rights Online??

[Otter]

Well, he said "fscking" instead "fucking", thus making it News For Nerds.

Other acceptable buzzwords would have been "Linux", "Bill", "geek", "DMCA" and "Lego".

Re:My Rights Online??

[neocon]

Please go read the Supreme Courts ruling on the matter, which I linked above, before declaring (incorrectly!) what you think it says. The Supreme Court was very specific on the matter, and stated pretty much the opposite of what your are claiming.

And yes, some of those detained as French saboteurs were, in fact US citizens. That's the whole point. It is certainly true that the German infiltrators were tried in a military court (not an open court, however). The same will happen to al-Muhajir, once the courts settle the matter of jurisdiction.

So again, taking a practice which has existed since the earliest days of the republic, and has been repeatedly been upheld by the Supreme Court, and claiming that it is something new only shows that you don't know the history of the matter.

Re:My Rights Online??

[neocon]

Please read the post you are responding to, before posting.

I have just posted links to a very similar case (enemy agents, one of them a US citizen, arrested in the US and held as POWs), which the US Supreme Court upheld in the 1943 case Ex Parte Quirin.

The court's ruling in that case addresses all of the points you raise.

Re:My Rights Online??

[elmegil]

The way the Bush administration is using the "enemy combatants" issue allows them in theory and so far in practice to arbitrarily declare that an individual is an enemy combantant and therefore not guaranteed any rights to defend themselves from this declaration. IF they had applied this consistently to any US citizen who was found to be an enemy combantant, they would have a leg to stand on. However, John Walker Lindh, obviously someone who you could only doubt was an enemy combatant if you count the money his parents were willing to spend on his behalf, was not treated as an enemy combantant, and was not stripped of his rights. IF they had some reasonable means of determining in a court of law that someone was an enemy combantant and then stripping them of their rights, they would also have a leg to stand on, but of course that's not what they're doing.

Personally, I find this extremely offensive, hypocritical, and threatening to my rights. Since I disagree quite strongly with the current administration's approach to a wide range of things to do with terrorism, citizens rights, etc. I do not think it is an entirely unlikely possibility for them to, at some point, try to declare me an enemy combatant (though I don't think at this very moment it is extremely likely either).

As for the whole "he could activate his sleeper cell through his lawyer" argument, that is specious. If it's acceptable to let the Teflon Don knowingly continue to run his syndicates through his lawyer, which certainly could be linked to the deaths of many people, I don't see how the possibility that maybe this guy could get a message--unmonitored! yeah, right!--to a sleeper cell is so much more a threat. After all, the mafia deals among other things in drugs, and if you deal drugs you're a terrorist, right?

Re:My Rights Online??

[the eric conspiracy]

It has been considered a basic right of a prisoner to have legal counsel available ever since the US was founded.

Any student of the Constitution realizes that all rights under the Constitution have limits of one sort or another. Usually these limits become important when full exercise of a right has the potential to cause harm significantly greater than the loss of that right. Yes, you have freedom of speech, but no you cannot us it in a manner that significantly harms another - see libel laws, child pornography, etc.

Unfortunately we do not live in a world of 0 and 1.

This is exactly the same case - right to an attorney is very important - but if it can be shown that access to an attorney puts people's lives in danger, well, then a judge can be convinced that the right should be overridden.

The weighing of these circumstances is why judges are so important...

After all, if someone is detained without counsel for allegedly trying to blow up a plane, what's to say they couldn't be detained without counsel for allegedly trying to hack a government website?

The concern in this case is not whether this person tried to commit a crime in the past, but rather what could happen in the future. The potential damage from a dirty bomb going off in a major city is so severe that any significant chance of such a thing happening must be taken very seriously.

Re:My Rights Online??

[Anonymous Coward]

I do not think it is an entirely unlikely possibility for them to, at some point, try to declare me an enemy combatant (though I don't think at this very moment it is extremely likely either).

Do you plan on getting off a plane from Pakistan?

Re:My Rights Online??

[Anonymous Coward]

And when did the government prove, with due process of law, that Padilla is a P.O.W.?

Allowing the administration to decide that anyone is an enemy combatant, just because they say so, is far more of a threat to American liberties than any terrorist.

There is a huge leap from allowing the administration to decide that anyone is an enemy combatant and requiring that the government prove that Padilla is an enemy combatant.

A court has decided that Padilla is an enemy combatant. If Bush tried to pull the same shit on some random citizen, I find it unlikely that the court would act the same way.

Re:My Rights Online??

[Watcher]

Here goes the karma.

As has been pointed out elsewhere in the comments, this man is accused of having joined an enemy military against the United States during a time of war. He actively conspired to kill Americans. According to US law (look at a passport), you lose your citizenship when you join an enemy military. He did so, and frankly is only guaranteed the rights of a captured soldier. Not only that, when he was captured he was not in a uniform (and with the money for bomb on him). The military is permitted, under international law, to execute him for spying.

This man should be stripped of all rights as a US citizenship, appropriately tried by the military, and either executed or imprisoned for a damned long time. This has happened in the past with other American citizens who turned on this country during war, and for good reason-other comments on this article cite examples.

This is war, people. Get it straight. Find a worthy cause for your ire.

Re:My Rights Online??

[Release Mumia!]

Also note that the Constitution makes very specific provisions about aiding the enemies of the United States in times of war; the current administration has blatantly ignored and perverted these principles to serve their own political interest.

It surprises me how many people fail to realize that the "War on Terrorism" is nothing but a power grab by the most right-wing administration in American history.

Keep this case in the news! Surely the president who seems so intent on selling Miguel Estrada to the Hispanic community wants them to see how well Hispanics are really treated under Bush rule! Welcome to Bush's America: where the oil companies and Jewish lobby decide how free you are allowed to be.

"Chimpy", that's creative!

Re:My Rights Online??

[neocon]

Interesting. So you believe that because many hispanics are upset that Miguel Estrada is getting unequal treatment from all other judicial nominees because he is hispanic, therefore they must also want al-Muhajir to be treated differently from all other captured al Qaeda members because he is hispanic?

That's a rather narrow and racist position for you to take, is it not?

I guess I'm not buying it, but then I suppose it's not less rational a claim than the rest of your post...

Re:My Rights Online??

[Anonymous Coward]

Shouldn't you first have to prove that he's guilty of the crimes he's been accused of before you strip him of his citizenship and rights?

Re:My Rights Online??

[neocon]

America: where the oil companies and Jewish lobby decide how free you are allowed to be.

Of course, this statement really tells the readers of this thread everything they need to know about your position. Thanks for making it clear.

Re:My Rights Online??

[VultureMN]

And the United States has declared war on -who- ?
The situation you are talking about is completely different than what this story
is about. There is no declared war, there is no tangible enemy, there is no end-game. When does Padilla get released ? When The Government of Terrorism surrenders?

The scary part about the Pidilla case is that the Gubmint wants to be able to call anyone an "Enemy Combatant" (or POW) and be able to lock them up without a trial, without a lawyer, without ANY due process.Ashcroft SAYS that Padilla is a member of Al Qaeda and was planning on setting off a dirty bomb, but how do we KNOW that?

Re:My Rights Online??

[neocon]

With due respect, did you actually read any of the above thread? The Supreme Court's ruling in Ex Parte Quirin already addresses the issues you raise, and that was sixty years ago. al-Muhjajir will be tried before a military tribunal after these questions of jurisdiction have been resolved.

That's how it works for crimes which fall under military jurisdiction, such as waging war against the US in a manner which contravenes the laws of war, such as fighting in civilian clothing. This has been the law of the land since the earliest days of the republic, as discussed in Quirin.

Re:My Rights Online??

[Anonymous Coward]

Not in a time of war. The rules work differently.

Re:My Rights Online??

[ColaMan]

I went a little cross-eyed when I read the details in your link... but there appears to be a little problem - at present, the U.S. isn't at war... by the legal definition of war anyway. Therefore "Prisoner of War", and all the legalese in your link, doesn't really apply.

Re:My Rights Online??

[novakreo]

This is war, people. Get it straight.

As has been pointed out elsewhere, no, it is not. Congress declares war, not the president.

Re:My Rights Online??

[elmegil]

Do you plan on getting off a plane from Pakistan?

And that should matter why? I could decide that I want to do humanitarian work in Pakistan, and then yes, I'd be getting off a plan from Pakistan when I come back home. So because I travel somewhere suspect, suddenly I'm an enemy combatant? Let's see, that means I can't travel to anywhere in Europe but Britain right now, can't go to a lot of places in the pacific rim, probably can't go much of anywhere overseas, actually. What's your point?

Re:My Rights Online??

[neocon]

Actually no -- by that argument, had we captured any of the Japanese pilots who attacked Pearl Harbor, we could not have held them as prisoners of war either, as war was not declared until the day after the attack.

Nothing in Ex Parte Quirin requires a state of war to exist, because we will not always have the luxury of voting whether to declare war before another nation chooses to attack us by surprise (as al-Muhajir tried to do).

Re:My Rights Online??

[addaon]

Not quite. You can go, you just can't come back. Which, to me, sounds like a better deal with every passing day. What's the procedure for renouncing US citizenship, anyone?

Re:My Rights Online??

[aWalrus]

Minor nitpick, but it's Padilla. In spanish, the way you're spelling it means, loosely translated, small fart. Not that I'm against your point, but it is a distracting detail.

Re:My Rights Online??

[MegaHamsterX]

No, when you fly a plane into the Pentagon, it's WAR. We cannot declare war against and adversary hideing in the shadows, but it is still a WAR. It is also a war we very well might lose if people don't wise up and relize the rules have changed, but we didn't change them. How will you prevent the next disaster? How will you console the families of the dead and dying? I don't like the sacrafices that must be made, but things will never be the same. What can you possible do to prevent such a thing? They prey upon open societies, we are the first, when we become more resistant to attack they will seek an easier target. We were by far the easiest target on the block on 9-11. Adapt and survive!

Re:My Rights Online??

[Anonymous Coward]

Enjoy that pakistan broadband in your grass hut

Re:My Rights Online??

[Anonymous Coward]

lol and just how does one declare "war" against a non-state and decentralized group like al-queda in congree?

Re:My Rights Online??

[zenyu]

What's the procedure for renouncing US citizenship, anyone?

I think for the US to respect it you have to renounce it in front of an foreign service official. This is probably usually done by signing some papers in the US embassy or consulate in the country you've moved to. With the way things are these days I'd recommend trying to do it in the consulate where the local laws apply. If they don't agree to that, or only have an embassy in that country most host countries will prolly let you send a notarized letter. If you have time is probably best to aquire local citizenship first so that you can take advantage of any benefits they have negotiated for their citizens in their extradition treaty with the US. If they claim you as a citizen many countries simply won't extradite you unless the US has some proof you commited a crime, ig

I'm in a research lab in New York so everyone here got their foreign passports shortly after 9/11 when the government turned openly fascist. Only a few have already left though, not that most of us haven't spent a month in some country checking for DSL deals and the like since then. ;) I met someone a few weeks ago that was programming in some cafe that had recently gotten his New Zealand passport by way of his mother's ancestry. The poor guy was trying to decide if he could live there, "they don't allow region coded DVD players, but they have an almost Australian love of censorship..." I told him to look at South America, on the face of it they have tough immigration laws, but they often just require you to take a daytrip accross the border every few months to remain legally resident. Or you can pay $30 for a visa to stay for longer periods. If you marry there I think all of them grant you citizenship without a fuss. Brazil is prolly the toughest and everyone there tells me no one bothers, you can live there 'illegally' all your life so long as you don't mind not being able to vote or hold public office.

Re:My Rights Online??

[You're All Wrong]

They cannot be "acts of war", as you are not officially at war.
The nomenclature "The War Against Terrorism" (or TWAT for short) is nothing more than political gesturing.

YAW.

Re:My Rights Online??

[You're All Wrong]

"What's the procedure for renouncing US citizenship, anyone?"

This is something my g.f. has seriously considered. However, it's a dangerous procedure, as you could be left without any citizenship.
The US insist that you renounce US citizenship before you adopt any other citizenship. Therefore there's a brief period where you're without citizenship, where 'brief' might be 6 months or longer, depnding on how efficient and stringent the destination country are. Getting permanent, or at least long-term (2 years, 5 years, even) residency in the destination country first is a good idea as at least you can stay there without citizenship while you're a resident.

Most country's citizenship requirements are quite stringent, and may would require e.g. fluency in the official language of the coutry. That reduces choices quite dramatically, alas.

YAW.

Re:My Rights Online??

[neocon]

Interesting definition. So Pearl Harbor was not an act of war because we were not at war with Japan when they attacked?

I guess I don't buy it.

Re:My Rights Online??

[Watcher]

If we apply the legal standard of the country, which you appear to be doing, then Korea, Vietnam, and the our first conflict with Iraq were not wars, either. Just because congress hasn't officially declared war does not make this any less of a war.

In answer to the question of how we declare victory in this war: that is a difficult question, one I haven't fully answered for myself. The death of every Al Qaeda member? The death of every member of every terrorist organisation who is active against the United States? Merely breaking these groups? The big issue here, and we're facing this right now, is dealing with state sponsors of terrorism (Iraq does qualify, especially in the case of Pallestinian suicide bombers-but so does Saudi Arabia, an issue we will have to address). This is a difficult war because we aren't up against just one or two countries-we're up against numerous sub-national groups spread across the world.

Re:My Rights Online??

[cosmodrome]

Are you seriously saying this is all because he is not WHITE? I totally agree that he should have legal representation, being a US citizen. However, to say this has ANYTHING to do with race is beyond supid.

Re:My Rights Online??

[addaon]

Yeah. Currently the two places I'd consider are Brazil (easy to get a passport, by way of my father) and Kyrgyzstan (easy to get a passport, by way of them having a great immigration policy). Both have some problems, but both seem better and better every day. Kyrgyzstan in particular is an interesting and not-quite-ideal nation, but it's appealing to think about living in a lousy place getting better, instead of a once-great place going mad. I don't know, a month ago I would have said "only kidding" in my response here... but I'm not, any more.

Re:My Rights Online??

[Sylver Dragon]

No, when you fly a plane into the Pentagon, it's WAR. We cannot declare war against and adversary hideing in the shadows, but it is still a WAR.

Nothing is stopping congress from declaring a war on a terrorist organization. It simply hasn't because it has not seen the need to. Just because it hasn't doesn't mean it can't.

It is also a war we very well might lose if people don't wise up and relize the rules have changed, but we didn't change them. How will you prevent the next disaster?

First off, nothing changed. There have been terrorist attacks against the US for a long time, and they will continue for a long time. That's just the way it is. On 9/11 a group of terrorists got lucky, that's all. Admitadlly there was a good amount of planning, which went into the attacks. But the fact that the CIA/FBI didn't pick up on them sooner, that the 'hostages' were too afraid to do anything, and that the WTC actually collapsed, was all just a sting of luck. We can't prevent the next disaster, as long as there are people willing to die to kill Americans, some of them are bound to get through, no matter how locked down our society becomes. Quit living in fear. Yes, a terrorist could bomb your home tomorrow, but draconian laws aren't going to change that fact.

How will you console the families of the dead and dying?

And how do you plan to console the families of people, put to death by military tribunals, who didn't do anything? How are you going to console those people whose lives are destroyed by the inevitable witch hunts? (Yes, falacious arguments like these can work both ways)

I don't like the sacrafices that must be made, but things will never be the same.

We don't need to make any sacrifices. The government was doing a pretty good job of protecting the people beforehand. Just because a group of terrorists got lucky one day, doesn't mean that we suddenly need to start living in fear. Its kind of sad that we don't get to see the work the CIA/FBI are doing in this areana, I would bet that for evey attack that gets through many more are thwarted, just by virtue of the CIA/FBI finding out about the possibility. Get over it, terrorism has been happeneing for a long time and will continue to do so, yes, 9/11 sucked, I feel sorry for the families of the dead, but hiding under a blanket of draconian policies is not going to make you any safer. This is Real Life, not Scobby Doo, what you don't see can hurt you.

What can you possible do to prevent such a thing? They prey upon open societies, we are the first, when we become more resistant to attack they will seek an easier target. We were by far the easiest target on the block on 9-11. Adapt and survive!

We can't prevent such a thing. Take a good look at Isreal right now, they are doing everything they can to prevent attacks, and they still have attacks getting through on a weekly basis. Now matter how hard you clamp down you will never stop everything.
Also, the terrorists aren't going to stop attacking us just because we make it harder, they are simply going to try harder. Their whole goal is to kill Americans, no matter what the cost.

Re:My Rights Online??

[SuperMario666]

I'm in a research lab in New York so everyone here got their foreign passports shortly after 9/11 when the government turned openly fascist.

Calling the American government "openly fascist" just because they have started to crackdown (often unfairly I admit) on foreign workers and students and tighten up security somewhat is like labeling Sweden a "communist nation" just because they have a larger social welfare system than the one in this country.

Re:My Rights Online??

[buffer-overflowed]

excellent post, countered fallacy with fallacy.

Re:My Rights Online??

[elmegil]

So you're saying that if the standards commonly used by the likes of Fox "News" were applied consistently, the media would be honest about how openly fascist our policies have become?

Re:My Rights Online??

[peter]

Of course it _shouldn't_ matter, but apparently it does if the customs people don't like the cut of your jib. I think the AC was just pointing out how ridiculous the situation is right now.

Re:My Rights Online??

[peter]

> [...] another nation chooses to attack us by surprise (as al-Muhajir tried to do).

So you don't think presumption of innocence applies in this case either? Try "as al-Muhajir is accused of". There is significant doubt about whether he's actually guilty, (and if so, what he's actually guilty _of_). I think more people would be more accepting of harsh imprisonment conditions and so on if he were caught red-handed putting the finishing touches on some highly radioactive material. (I still don't think anyone deserves to be treated like he has been, but more people would be ok with it than is actually the case.)

Re:My Rights Online??

[Loki_1929]

Back for more? I'll make a simple point for now...

"The problem with that argument is that it has also been the law of the land, since the earliest days of this republic, that prisoners of war are not criminal suspects, but fall in a different category."

By your logic, drug dealers, our enemies in the war on drugs, have no legal rights and may be executed without trial. Therefore, any police officer has the right to execute anyone believed to be involved in any way, shape, or form with drug activities, seeing as they're the enemy in a war who are in the United States to cause harm to Americans.

And as always, Ex Parte Quirin established the lawfulness of military tribunals to try those accused as spies or saboteurs. Never does it say they may be held indefinitely without trial, hearing, or counsel. Obviously the judge in this case agrees with me, as Padilla has twice been granted a lawyer. The government you are defending continues to defy both law and the orders of a judge. Should they continue to do so, I'm afraid the judge has it within his authority to order Federal Marshals to take the prison where Padilla is being held, by force is necessary, and to bring Padilla to a location under the control of the local authorities.

I can think of nothing I'd like to see more (including the capture of Bin Laden), than to see Federal Marshalls taking Padilla out of that hellhole while his ex captures stand idly by with their hands on their heads. At that point, Bush may choose to stand by and take it, or he may choose to make himself a despot. You can well imagine the reaction of the American people to learn that soldiers, under the orders of Bush, have opened fire on civilian law enforcement officials.

Re:My Rights Online??

[You're All Wrong]

I don't _buy_ facts, I learn them.

Japan formally joined The Axis in September 27, 1940 with its signing of the Tripartite Pact.

Japan attacked Pearl Harbor on December 7, 1941.

So Japan had been an enemy at war for over a year before Pearl Harbor.

YAW.

Re:My Rights Online??

[neocon]

You're mighty quick to try to twist someone's words. Of course the presumption of innocence applies, and when Mr. al-Muhajir is tried by a military commission, he will have the benefit of that presumption, just as our own soldiers do when tried by the same commissions.

The important point is that the crime Mr. al-Muhajir is charged with is one which falls under military jurisdiction, as per Ex Parte Quirin.

Re:My Rights Online??

[neocon]

You don't actually seem to have read Quirin (or at least not very closely). Had you, you would note that it lays out a specific set of criteria for who may be tried by military jurisdiction (while neither ruling out nor naming other situations that such jurisdiction may apply to). These criteria are laid out as follows:

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.

Are you arguing that these criteria apply to drug dealers? Are you arguing that they don't apply to al-Muhajir? Keep in mind that the decision makes very clear that attacks on civilian targets (as Haupt, et al were attempting) do not disqualify you from such jurisdiction.

Of course, from there you descend into your own little fantasy world...

Re:My Rights Online??

[neocon]

Umm, hello?

You are aware that the US wasn't at war with the Axis at the time of the Pearl Harbor attack, right?

Or are you trolling?

Re:My Rights Online??

[You're All Wrong]

I do think that an action that deliberately provokes the target nation into formally declaring war is in itself the declaration.
(Take it to its logical extreme; imagine a strike so decisive that the whole government was annihilated - there would be noone to declare war.)
My point was that as soon as the sticks were pushed forwards, the USA was part of the same war that everyone else was part of, an accepted state of war between real nations, and known enemies, namely the Axis block. (I have no doubt the Japanese, and the Germans, considered the lend-leasing scheme to be more partisan than the USA claimed it to be, and in their eyes the USA was everything but an enemy force, but an enemy in every other way.)

TWAT can _never_ attain such a status as there are no nations involved - the "Axis of Evil" is simply political rhetoric use to stir up support from an underinformed and frightened populace.
A war against Iraq should be called just that, but it would be the USA unilaterally declaring the war for no sane reason at all. I've seen one reason repeatedly given - "self defence", but that's patently absurd as Iraq is not threatening war against the USA.

YAW.

Re:My Rights Online??

[someone247356]

You said:
"Actually no -- by that argument, had we captured any of the Japanese pilots who attacked Pearl Harbor, we could not have held them as prisoners of war either, as war was not declared until the day after the attack."

I believe you would be correct. We would have held them as common murderers. They weren't at war with us, yet, and they murdered American citizens, damaged American property. They would have been held as common criminals, tried as common criminals, and convicted as common criminals. I'm not sure if we had the death penalty at that time, but if we did, they would have been executed as common criminals.

Why do you think the Japanese were so adamant about having people from the Japanese embassy declare War just BEFORE the attack? Not soon enough to allow the U.S. military to do anything about it, just soon enough to have its soldiers considered lawful combatants. If they Japanese ambassador hadn't gotten tied up in traffic and had managed to declare war just before the attack commenced at Pearl Harbor, then those imaginary pilots that we had captured would have had to have been treated as POW's not criminals.

Does that clear things up for you?

Re:My Rights Online??

[neocon]

First off, you're missing the point -- the Axis nations had not declared war on us either before Pearl Harbor. No state of war existed by any definition, as we had not declared war on them, and they had not declared war on us. Pearl Harbor was an attack by one nation against another nation which it was not at war with.

So again, are you really telling us that an attack by one nation on another nation which it was not at war with prior to the attack is not `an act of war'? Really?

Mind you, this is all tangential to the issue at hand, since it has always been the law of the land (and the Supreme Court has repeatedly held, including in Ex Parte Quirin, which is cited throughout this thread) that some acts fall under military jurisdiction regardless of whether the country is at war at the time.

Secondly, war has never meant only a conflict between nations. Indeed, in the earliest years of this republic, presidents Jefferson and Madison (who presumably knew a thing or two about what is and isn't constitutional) both fought wars against the Barbary Pirates of the North African coast, who like the foes we face today were a shadowy international network not affiliated with any specific nation, but relying on several state sponsors for support and armaments.

Re:My Rights Online??

[neocon]

Sorry, that's not the way the law of war, or of the US work.

For a specific discussion, see the Ex Parte Quirin ruling, cited throughout this thread. Summary is that some crimes are `war crimes', and fall under military jurisdiction regardless of whether the country is formally at war.

If you believe otherwise, please explain how we took POWs in the Korean, for example, which was never formally declared (indeed the vast majority of military actions have occurred outside the scope of declared wars).

Re:My Rights Online??

[You're All Wrong]

"So again, are you really telling us that an attack by one nation on another nation which it was not at war with prior to the attack is not `an act of war'? Really?"

No, quite the opposite. I think there's miscommunication going on here. I think it was quite absolutely an act of war. I thought that's what I said. The attack was the single thing that took the US from a state of not being at war to a state of being at war.
It was bilateral, and as soon as one side declared war, war was declared.

And yes, we have drifted away from the issue. The reason I hold up the nation as being import is because if there is way to identify "the enemy" then anyone, for any ad hoc reason, could be asserted to be the enemy. That's what we're seeing here. He has not partaken in an act of war, as and many I would define one, as far as we know. He's almost certainly plotting something, that I don't doubt. However, he's currently nothing more than a US citizen consorting with suspicious foreigners. (But the same could be said for those that deal with the central and southern American drug producers for example.) If the authorities believe that he has betrayed his country, the surely he'd be guilty of treason, which I'm sure is a capital offense, and most definitely a civilian, criminal, one. As far as I can tell there's no assertion that he has actually taken up arms with another's militia against the USA. So it looks like he fits cleanly on one pigeon-hole, and not in another, yet they are insisting that he fits in the other pigeon-hole.

And why are they making a fuss over 5-th amendment rights? That's irrelevant. If he's tried for and guilty of treason, then whether he co-operates or not is a complete red herring. If they are so sure they have the evidence, then he will lose his head, and there's no need to threaten him with whatever he'll be threatened with if he exercises his now non-existant 5-th amendment rights. And do you actually buy the "sleeper cells" excuse for forbidding access to a lawyer? I think the organ-grinders can still work out what to do even if they lose their favorite monkey.

To be honest, I don't care too much for Padilla as a person, I'm sure he's guilty as fuck of something, but I don't want any triggers pulled until the evidence is irrefutably presented in black and white. However, it's the principle of procedure that concerns me. Look at the case of the 72-year old Brit Derek Bond in South Africa whose association with "the enemy" was that he _had the same surname as someone_ on the FBI's most wanted list. Now I've heard of the phrase "guilty by association", but when the association is sharing a surname, then the FBI's practices and procedures are fucked, truly fucked.

So I have to side with the ACLU here (then again, I side with them on most things). (Assuming the ACLU are still on his case, they were certainly involved last year?) Basically that rides on the following 1971 Congressional statute - "[no] citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." There has been no such act of Congress. (And 1971 postdates 1942.)

YAW.

Re:My Rights Online??

[neocon]

With due respect, while you sit here trying to argue that Mr. al-Muhajir was picked up without reason, a federal judge has already ruled twice now that the government have grounds to hold Mr. al-Muhajir as an enemy combatant, explicitly citing Quirin as a precedent (read the article. No really).

Likewise, you assert that people are being picked up due to `guilt by association' without providing a single credible cite to an instance of this.

And then you go on about the fifth ammendment. What are you talking about? Are you confusing me with someone who mentioned the fifth ammendment at any point in this thread? Are you replying to so many threads that you've lost track?

And then -- voila! -- you come up with a law which you say passed in 1971, but which you neither cite a reference to, nor provide more than a sentence fragment of. What's the full text? [When] did it it pass?

Re:My Rights Online??

[someone247356]

I've read "Ex parte Qurin", it's a case of bad law and only of limited applicability here. "Ex parte Milligan" would have been a better choice, as it makes for better law. It is probably equally irrelevant since in both of those cases we were at war.

Tony Mauro has an interesting take on Ex parte Qurin and its applicability to Bush's "war on terrorism" here (http://www.counterpunch.org/mauro1.html).

If you look at the Qurin ruling itself (http://caselaw.lp.findlaw.com/scripts/getcase.pl? court=US&vol=317&invol=1) you might notice a few interesting things'

"After the declaration of war between the United States and the German Reich,..." (14th paragraph)

"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." (later in 14th paragraph)

"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." (15th paragraph)

"On the same day, by Proclamation,3 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, [317 U.S. 1, 23] 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'." (16th paragraph, the President's order establishing the tribunal)

" The Proclamation also stated in terms that all such persons were denied access to the courts." (17th paragraph)

" The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, ..." (31st paragraph)

If you notice, the Qurin decision of the Supreme Court, during a time of declared war (declared by Congress) basically says that the Constitution gives the President as Commander in Chief wide latitude to wage war in a manner that he thinks is appropriate. The Constitution also places the requirement upon Congress to declare a war BEFORE these extraordinary powers can come into play. This is to prevent just this type of power grab that Bush is trying to succeed. A large part of the current crisis is that Congress is letting the American people down.

In the Qurin decision we were fighting a declared war against a foreign power. The decision takes pains to point out that they were wearing German uniforms, that they subsequently discarded. The presidential order that lead up to the Qurin decision limited itself to are acting for, a citizen of, or aiding any nation with whom we are at war. If the saboteurs were Swiss, and had acted under the belief that the U.S. needed to be punished for insulting coo-coo clocks everywhere, the order wouldn't have applied to them. You also have to remember that the case that lead up to the Qurin decision, they accused spies were being tried, they had access to a lawyer (who do you think filled the appeal to the Supreme Court?). In Padilla's case Bush wants to be able to hold a U.S. citizen, during a time of peace, incommunicado, without access to counsel, and without bringing him to any trial, military or otherwise. Padilla has a lawyer, the government doesn't believe that they should be forced to let him talk with his lawyer, or anyone else, now or ever. The judge rightly said, "I don't think so."

It is well established that spies are unlawful

Re:My Rights Online??

[neocon]

You certainly don't appear to have read Ex Parte Quirin very carefully -- it discusses Milligan at length, and concludes that it is not relevant for reasons which apply equally to Mr. al-Muhajir's case.

Nor does Quirin rely on any way on a declaration of war being in place, as you'd see if you'd read it more carefully (but perhaps you did see that, as you bend into curious contortions attempting to take parts of sentences out of context to `prove' your point). In fact, it lays out a very specific and limited set of criteria:

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.

All of these criteria, of course, are met by Mr. al-Muhajir.

You can argue that this is `bad law' if you want, but it is the law of the land, and uphelds a practice which has existed since the earliest days of this republic, when presidents Jefferson and Madison detained port saboteurs working with the French under military jurisdiction (needless to say, we were not at war with the French at the time). But perhaps you are arguing that the author of the Constitution was not familiar with what it said?

Re:My Rights Online??

[You're All Wrong]

"while you sit here trying to argue that Mr. al-Muhajir was picked up without reason,"

There is a serious miscommunication problm here. I don't say that at all. I get the feeling you're speaking a different language, as you really don't seem to understand what I'm saying. Come on - show me where I say he was picked up without reason. Give me the reference to my post. You can't, can you. You're beginning to make things up.

The reason I raised the 5th amendment is because the FindLaw analysis of the situation indicated that it was at the core of the government's stance, and as far as I can tell this bloody story is about the government's stance on this guys consitutional rights. Isn't it? Are you reading the same story as me? And did I say anywhere that you raised it? Didn't think so.

The 1971 snippet came from the ACLU analysis. Google will find it. However, you appear too lazy, given that you are too lazy to even parse what I write correctly.

YAW.

Re:My Rights Online??

[neocon]

Heh. So if you can't be bothered to post a link to a law which you allege exists, or even enough context to the sentence fragment you pasted to determine if it's relevant if it does exist, that means that I'm too lazy?

Okaaay, there...

Re:My Rights Online??

[neocon]

Incidentally, Quirin explicitly found that:

those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission.

Thus, unless the Supreme Court rules otherwise, congress can't change this, as it is a power granted by the US Constitution to the executive, not to the legislature. Such a law, if passed, would thus be explicitly unconstitutional.

Re:My Rights Online??

[someone247356]

I think perhaps you read Qurin too broadly. A scant four paragraphs before the section you quoted the Court wrote: (http://caselaw.lp.findlaw.com/scripts/getcase.pl? court=US&vol=317&invol=1)

"It has not hitherto been challenged, and so far as we are advised it has never been suggested in the very extensive literature of the subject that an alien spy, in time of war, could not be tried by military tribunal without a jury."

As to taking things out of context to try and prove a point, the very sentence preceding the one you quote:

"We have no occasion now to define [317 U.S. 1, 46] with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war."

Ex parte Qurin is notably silent on the imposition of military tribunals against American citizens during peace time. There is a very good reason for that, the laws of war include such things as bombing, rape, murder, the distraction of property.... hmm sounds like a lot of things that civilian courts handle. From the wikpedia (http://www.wikipedia.org/wiki/Laws_of_war):
"Spi es and terrorists are not protected by the laws of war; they are subject to civilian laws (if any) for their acts and in practice are often subjected to torture and execution."

Well hopefully not torture, at least not in the U.S.

Your broad reading of Ex parte Qurin would authorize the use of military tribunals for any action that fits the definition as breaking the "Laws of War". Since you are also broadly reading the definition of what being "at war" is, then all cases of murder, rape, bombing, espionage, etc. should be tried by military tribunals.

Gee, why haven't we been doing this all along? It would sure speed the judiciary. It would end up negating several constitutional amendments such as the fifth and sixth, but what's wrong with trashing the Constitution? Isn't swift and sure "justice" much more important than constitutional rights?

You seem to forget the Ex parte Qurin was decided during a declared war, to deal with obvious enemy combatants. The Supreme Court has never addressed the use of military tribunals during peace time. Until it does, or Congress declares a war, I think you, and Bush, are misusing the authority granted the president under Ex pate Qurin.

Other opinions:
US Breaks Laws of War, discussing the hereto internationally unrecognized "unlawful combatant"
(http://mondediplo.com/2002/04/08breac h)

Re:My Rights Online??

[neocon]

Go reread the additional quote you bring -- it says only that the court will not judge what circumstances beside the criteria given (which I quote above) are also subject to military jurisdiction. Likewise, the court points out that no one is arguing that alien spies are not subject to military jurisdiction, exactly because Haupt, like al-Muhajir was a citizen.

Instead, the court lays out a specific set of circumstances which are subject to military jurisdiction, criteria which both Haupt et al and al-Muhajir fit perfectly, and which at no point mention that war must have been declared.

As for `broad' interpretations, that's nonsense -- these criteria are quite specific. As for why `we haven't been doing this all along', we have -- the footnotes to Quirin point out a dozen or so such cases, from the earliest days of the republic up through the time of the ruling, and several of them in peace time.

Indeed, president Madison himself used military jurisdiction in peacetime against French-backed port saboteurs. But perhaps you are arguing that the Constitution's author did not know what it said?

Re:My Rights Online??

[You're All Wrong]

http://www.google.com/search?hl=en&ie=UTF-8&oe=UTF -8&q=%22citizen+shall+be+imprisoned+or+otherwise+d etained+by+the+United+States%22&btnG=Google+Search
Happy reading.

Bookmark that "google" place, you might find it useful.

YAW.

Re:My Rights Online??

[neocon]

``You keep quoting that law. I do not think it says what you think it says.''

Go look at the law, and at Quirin again. All the law says is that you can't be arrested for something which has not been declared illegal by congress. However, Mr. al-Muhajir is being tried for something which congress did declare illegal over two-hundred years ago -- entering the nation in order to make war on the United States.

Furthermore, as Quirin ruled, this being a crime of war, it is subject to military jurisdiction, as provided by the Constitution. So unless you can find anywhere that Congress made waging war against the US legal in the years since Quirin, Mr. al-Muhajir is being held pursuant to an act of congress.

Now you (and the ACLU) wish to claim that simply because a crime is subject to military jurisdiction, a citizen cannot be tried for it, but the law you cite says nothing of the sort. But hey -- don't take my word for it; the federal judge in Mr. al-Muhajir's case has already ruled twice that Mr. al-Muhajir is being legally detained, as you'd know if you'd read the article.

Re:My Rights Online??

[J. Random Software]

He's not being "tried", only interrogated. He hasn't been permitted to mount a legal defense. The Fifth Amendment requires due process for all criminal cases (the bit about war only applies to the clause about indictments), so why is military jurisdiction allowed to withhold it?

Re:My Rights Online??

[Anonymous Coward]

IT will never end. WE will never regain our lost freedoms.

Re:My Rights Online??

[neocon]

On the contrary, the government has repeatedly indicated their desire to try him in front of a military tribunal when the current legal tussle over matters of jurisdiction is over. Indeed, this is central to both the government's legal argument and the judge's ruling, since the reason for military jurisdiction is the fact that he is charged with a crime which falls under such jurisdiction.

You are right, of course, that the Fifth Ammendment places restrictions on prosecutions in criminal cases, but this isn't a criminal case, it is a military case, as discussed in the Quirin ruling.

Of course, they could also choose to drop charges at the end of hostilities, but I'm sure you agree that this is unlikely.

But you really should go read the Quirin ruling, which is linked throughout this thread -- it addresses each of the issues you raise, plus more.

Re:My Rights Online??

[Anonymous Coward]

Defeatest buttfucker.

Re:My Rights Online??

[peter]

> You're mighty quick to try to twist someone's words. Of course the presumption of innocence applies ...

I was trying to gain some insight into your thoughts from the words that you chose. If I was mistaken, then I guess it would seem to you that your words had been twisted. Sorry about that, but you've been sounding so hawkish that I wanted to remind you (and everyone reading this) that I thought it necessary to remind everyone that we don't even have any idea what this guy actually did. Most people don't like the idea of people being hauled off like that based on unproven suspicion, especially during peace time. Even if you can twist an interpretation of law to apply to this situation, most people still don't like it. (I read your journal entry that you linked to, and your posts, and I don't think the Ex Parte Quirin decision is relevant, because Padilla/al-Muhajir has been a US resident for the whole time, unlike the guys that went to Germany and later returned on a submarine as saboteurs. The decision seems to hinge on the fact that they left, trained with the German army, then came back as soldiers, but didn't wear uniforms, thus making them illegal combatants. Since that important detail is not the same for the Padilla case, the decision is not directly relevant.)

Re:My Rights Online??

[neocon]

I don't think you read the article actually -- al-Muhajir travelled to Pakistan for some time, and was picked up upon return to the US. So it sure seems to me that your point doesn't hold. The government has presented to the judge in this case evidence that he trained with al Qaeda in this time.

Given how many claims you base on your claim that he didn't leave the US, it's kind of strange to me that you didn't bother to actually check this point...

Now go back and read the criteria laid out in the Quirin case:

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

These criteria clearly match Mr. al-Muhajir. I don't see how you can make the assertion that he wasn't fighting out of uniform because he didn't own a uniform with a straight face. Do you really think that the law of war makes it illegal to fight without a uniform if you own a uniform but left it home?

Re:My Rights Online??

[neocon]

the law of war makes it illegal to fight without a uniform if you own a uniform but left it home?

that should read `law of war only makes it illegal'

Re:My Rights Online??

[peter]

> al-Muhajir travelled to Pakistan for some time ...

I didn't know that, sorry. I'd heard some about the case before, and I thought I knew some things, but I guess I was wrong. Sorry about that, but I've read the article now.

> These criteria clearly match Mr. al-Muhajir.

Only if you count Al-Qaeda as an enemy army the US is at war with, rather than a criminal/terrorist organization. Al-Qaeda is not part of any country's military force, and AFAIK, there is no group of people anywhere that has a government (official country or not) that has Al-Qaeda as it's military.

Do you really think that the law of war makes it illegal to fight without a uniform if you own a uniform but left it home?

No, I'm not trying to pull some stupid technical argument like that.

Another point I might add: Just because you have laws that allow you to be really harsh, you don't have to apply them when they're not necessary. Not everyone thinks it's necessary to be so nasty about locking people up without giving them their day in court for a very long time.

Re:My Rights Online??

[neocon]

Please go read the excerpt from Quirin which I posted above. It explicitly does not require that the enemy be part of a regular army, for the simple reason that saboteurs rarely are. The footnotes to Quirin list a dozen or so precedents of the lawful detention of combatants under military jurisdiction, and few of them are of people who were strictly part of a military.

Nor does it require that we be at war with those who attack us at the time they attack us -- by such a criteria, for example, the pilots who attacked Pearl Harbor (had any been captured) would have been immune to consideration as prisoners of war, merely becayse war had not been declared at the time.

Instead, Quirin makes it clear that is the nature of the charges which makes something fit into military jurisdiction (much as in civilian law some charges fall under state and some under federal jurisdiction), not the nature of those charged.

And fuck you too...

[Anonymous Coward]

to those cocksmokers the say "This is the stuff that matters, d00d!!!"

It might make good conversation for you and the other losers while you tie-dye your tshirts between class, but to those of us out here making a living raising our kids...

We coulding give a FUCK -HC

Would you like some yogurt?

[xdfgf]

First post I've seen that makes sense in quite a while.

PS. I have an interview you might like to read about michael

Rob Malda is a 26-year old white male with a stocky build and a beard. His head is shaved. He responded to my ad to be interviewed for this article wearing only leather pants, leather boots and a leather vest. I could see that both of his nipples were pierced with large-gauge silver rings.

Questioner: I hope you won't be offended if I ask you to prove to me that you're a nullo. Just so that our readers will know that this isn't a fake.

Rob: Sure, no problem. (stands and unbuckles pants and drops them to his ankles, revealing a smooth, shaven crotch with only a thin scar to show where his genitals once were).

Q: Thank you. That's a remarkable sight.

(laughs and pulls pants back up). Most people think so.

Q: What made you decide to become a nullo?

(pauses). Well, it really wasn't entirely my decision.

Q: Excuse me?

The idea wasn't mine. It was my lover's idea.

Q: Please explain what you mean.

Okay, it's a long story. You have to understand my relationship with Michael before you'll know what happened.

Q: We have plenty of time. Please go on.

Both of us were into the leather lifestyle when we met through a personal ad. Michael's ad was very specific: he was looking for someone to completely dominate and modify to his pleasure. In other word, a slave.

The ad intrigued me. I had been in a number of B&D scenes and also some S&M, but I found them unsatisfying because they were all temporary. After the fun was over, everybody went on with life as usual.

I was looking for a complete life change. I wanted to meet someone who would be part of my life forever. Someone who would control me and change me at his whim.

Q: In other words, you're a true masochist.

Oh yes, no doubt about that. I've always been totally passive in my sexual relationships.

Anyway, we met and there was instant chemistry. Michael is a few years older than me and very good looking. Our personalities meshed totally. He's very dominant.

I went back to his place after drinks and had the best sex of my life. That's when I knew I was going to be with Michael for a long, long time.

Q: What sort of things did you two do?

It was very heavy right away. He restrained me and whipped me for quite awhile. He put clamps on my nipples and a ball gag in my mouth. And he hung a ball bag on my sack with some very heavy weights. That bag really bounced around when Michael fucked me from behind.

Q: Ouch.

(laughs) Yeah, no kidding. At first I didn't think I could take the pain, but Michael worked me through it and after awhile I was flying. I was sorry when it was over.

Michael enjoyed it as much as I did. Afterwards he talked about what kind of a commitment I'd have to make if I wanted to stay with him.

Q: What did he say exactly?

Well, besides agreeing to be his slave in every way, I'd have to be ready to be modified. To have my body modified.

Q: Did he explain what he meant by that?

Not specifically, but I got the general idea. I guessed that something like castration might be part of it.

Q: How did that make you feel?

(laughs) I think it would make any guy a little hesitant.

Q: But it didn't stop you from agreeing to Michael's terms?

No it didn't. I was totally hooked on this man. I knew that I was willing to pay any price to be with him.

Anyway, a few days later I moved in with Michael. He gave me the rules right away: I'd have to be naked at all times while we were indoors, except for a leather dog collar that I could never take off. I had to keep my head shaved. And I had to wear a butt plug except when I needed to take a shit or when we were having sex.

I had to sleep on the floor next to his bed. I ate all my food on the floor, too.

The next day he took me to a piercing parlor where he had my nipples done, and a Prince Albert put into the head of my cock.

Q: Heavy stuff.

Yeah, and it got heavier. He used me as a toilet, pissing in my mouth. I had to lick his asshole clean after he took a shit, too. It was all part of a process to break down any sense of individuality I had. After awhile, I wouldn't hesitate to do anything he asked.

Q: Did the sex get rougher?

Oh God, yeah. He started fisting me every time we had sex. But he really started concentrating on my cock and balls, working them over for hours at a time.

He put pins into the head of my cock and into my sack. He attached clothespins up and down my cock and around my sack. The pain was pretty bad. He had to gag me to keep me from screaming.

Q: When did the idea of nullification come up?

Well, it wasn't nullification at first. He started talking about how I needed to make a greater commitment to him, to do something to show that I was dedicated to him for life.

When I asked him what he meant, he said that he wanted to take my balls.

Q: How did you respond?

Not very well at first. I told him that I liked being a man and didn't want to become a eunuch. But he kept at me, and wore me down. He reminded me that I agreed to be modified according to his wishes, and this is what he wanted for me. Anything less would show that I wasn't really committed to the relationship. And besides, I was a total bottom and didn't really need my balls.

It took about a week before I agreed to be castrated. But I wasn't happy about it, believe me.

Q: How did he castrate you?

Michael had a friend who was into the eunuch scene. One night he came over with his bag of toys, and Michael told me that this was it. I was gonna lose my nuts then and there.

Q: Did you think of resisting?

I did for a minute, but deep down I knew there was no way. I just didn't want to lose Michael. I'd rather lose my balls.

Michael's friend restrained me on the living room floor while Michael videotaped us. He used an elastrator to put a band around my sack.

Q: That must have really hurt.

Hell yeah. It's liked getting kicked in the balls over and over again. I screamed for him to cut the band off, but he just kept on going, putting more bands on me. I had four bands around my sack when he finished.

I was rolling around on the floor screaming, while Michael just videotaped me. Eventually, my sack got numb and the pain subsided. I looked between my legs and could see my sack was a dark purple. I knew my balls were dying inside.

Michael and his friend left the room and turned out the light. I lay there for hours, crying because I was turning into a eunuch and there wasn't anything I could do about it.

Q: What happened then?

Eventually I fell asleep from exhaustion. Then the light switched on and I could see Michael's friend kneeling between my legs, touching my sack. I heard him tell Michael that my balls were dead.

Q: How did Michael react?

Very pleased. He bent down and felt around my sack. He said that it felt cold.

Michael's friend told me that I needed to keep the bands on. He said that eventually my balls and sack would dry up and fall off. I just nodded. What else could I do at that point?

Q: Did it happen just like Michael's friend said?

Yeah, a week or so later my package just fell off. Michael put it in a jar of alcohol to preserve it. It's on the table next to his bed.

Q: How did things go after that?

Michael was really loving to me. He kept saying how proud he was of me, how grateful that I had made the commitment to him. He even let me sleep in his bed.

Q: What about the sex?

We waited awhile after my castration, and then took it easy until I was completely healed. At first I was able to get hard, but as the weeks went by my erections began to disappear.

That pleased Michael. He liked fucking me and feeling my limp cock. It made his dominance over me even greater.

Q: When did he start talking about making you a nullo?

A couple of months after he took my nuts. Our sex had gotten to be just as rough as before the castration. He really got off on torturing my cock. Then he started saying stuff like, "Why do you even need this anymore?"

That freaked me out. I always thought that he might someday take my balls, but I never imagined that he'd go all the way. I told him that I wanted to keep my dick.

Q: How did he react to that?

At first he didn't say much. But he kept pushing. Michael said I would look so nice being smooth between my legs. He said my dick was small and never got hard anymore, so what was the point of having it.

But I still resisted. I wanted to keep my cock. I felt like I wouldn't be a man anymore without it.

Q: So how did he get you to agree?

He didn't. He took it against my will.

Q: How did that happen?

We were having sex in the basement, and I was tied up and bent over this wooden bench as he fucked me. Then I heard the doorbell ring. Michael answered it, and he brought this guy into the room.

At first I couldn't see anything because of the way I was tied. But then I felt these hands lift me up and put me on my back. And I could see it was Michael's friend, the guy who took my nuts.

Q: How did you react?

I started screaming and crying, but the guy just gagged me. The two of them dragged me to the other side of the room where they tied me spread eagled on the floor.

Michael's friend snaked a catheter up my dick, and gave me a shot to numb my crotch. I was grateful for that, at least. I remember how bad it hurt to lose my balls.

Q: What was Michael doing at this time?

He was kneeling next to me talking quietly. He said I'd be happy that they were doing this. That it would make our relationship better. That kind of calmed me down. I thought, "Well, maybe it won't be so bad."

Q: How long did the penectomy take?

It took awhile. Some of the penis is inside the body, so he had to dig inside to get all of it. There was a lot of stitching up and stuff. He put my cock in the same jar with my balls. You can even see the Prince Albert sticking out of the head.

Then they made me a new pisshole. It's between my asshole and where my sack used to be. So now I have to squat to piss.

Q: What has life been like since you were nullified?

After I got over the surgery and my anger, things got better. When I healed up, I began to like my smooth look. Michael brought friends over and they all admired it, saying how pretty I looked. It made me feel good that Michael was proud of me.

Q: Do you have any sexual feeling anymore?

Yes, my prostate still responds when Michael fucks me or uses the buttplug. And my nipples are quite sensitive. If Michael plays with them while fucking me, I have a kind of orgasm. It's hard to describe, but it's definitely an orgasm.

Sometimes Michael says he's gonna have my prostate and nipples removed, but he's just kidding around. He's happy with what he's done to me.

Q: So are you glad Michael had you nullified?

Well, I wouldn't say I'm glad. If I could, I'd like to have my cock and balls back. But I know that I'm a nullo forever. So I'm making the best of it.

Michael and I are very happy. I know that he'll take care of me and we'll be together always. I guess losing my manhood was worth it to make that happen for us.

Enemy combatant.

[Picass0]

This man lost his rights as a US citizen when he traveled overseas and conspired with a foreign government to harm the United States. Read the fine print on your passport sometime. You can have your citizenship revoked for such actions. He is an enemy in a foriegn army. As such, it is appropriate for him to be tried by the military.

There is some very damning evidence that this piece of shit wanted to detonate a radiological device on our soil. This isn't "Free Kevin" time here. He's a fucking terrorist. And if he succeeded in doing what he intended, if my two little girls were dying of radiation poisoning, at least Morphine007 can sleep well that he wasn't denied due process.

For fuck's sake, can we get real about the fact this is a war?

Re:Enemy combatant.

[neocon]

Thank you, well put.

Re:Enemy combatant.

[elmegil]

Too bad John Walker Lindh got to keep his rights then, isn't it? He certainly was an enemy in a foreign army, with much more preponderance of evidence to prove it. I guess that this "he gave up his rights" attitude only applies if you don't have parents who can buy you out of trouble.

Re:Enemy combatant.

[Picass0]

Lindh should have been tried by the military. Major fuck up.

Re:Enemy combatant.

[neocon]

Umm, no. The government felt that there was enough doubt whether Abdul Hamid (born John Walker Lindh) had intended to conspire with al-Qaeda that they handed the matter over to the courts to decide.

In the cases of al-Muhajir and Yasser Hamdi, caught actively fighting in Afghanistan, there was no such doubt.

Re:Enemy combatant.

[orthogonal]

This man lost his rights as a US citizen when he traveled overseas and conspired with a foreign government to harm the United States.

Um, what a bout due proces of law? What about proving that he conspired to harm the U.S.? What abbout doing this in a court of law?

How does letting him have his day in court threaten our safety?

And how does not letting him have his day in court safeguard our liberties?

Re:Enemy combatant.

[elmegil]

Last time I checked, Lindh was caught "actively fighting in Afghanistan". The only doubt involved was "oh, it's a confused WHITE BOY who has WEALTHY PARENTS. Maybe it would look bad to treat him the way we treat those brown skinned folks."

Re:Enemy combatant.

[Anonymous Coward]

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety

Ben Franklin, Historical Review of Pennsylvania.(1759)

Re:Enemy combatant.

[neocon]

Sure, that must be it. It can't have anything to do with the fact that both al-Muhajir and Hamdi have ties to al Qaeda, while there is not similar evidence for Lindh.

Which is it? You seem pretty bloodthirsty in arguing that the government shouldn't have discretion here in deciding who to treat as a POW, which is rather odd when you consider that a few posts above, you were arguing that the government shouldn't be able to treat anyone as a POW...

Re:Enemy combatant.

[gizmo_mathboy]

His status was changed to "enemy combatant" because he couldn't be detained any longer as a material witness nor a suspect in a crime. So, he was re-classified as an "enemy combatant".

What evidence is there to support that he is a terrorist? The word of another terrorist? Yes, he did return from Pakistan where he is alleged to have undergone some terrorist training, but what further evidence is there to support the claim he is a terrorist?

I think making him an "enemy combatant" is a bit extreme and not giving him access to legel counsel is just flat out wrong.

Re:Enemy combatant.

[elmegil]

Where precisely did I say no one should be treated as a POW?

The point here is that there are two ways to handle this: with a consistent standard (whichever way it cuts) or without. To my eyes, it looks like a pretty inconsistent standard to me. I fail to see how al-Quaeda member vs. Taliban army member matters a damn bit when we're at war with both.

If you give the government complete discretion instead of holding it to standards, then you are begging for the government to abuse that discretion; and guess what, if it can keep the evidence of being an enemy combatant secret and away from our usual judicial standards, you are placing all your trust in the idea that the government is infallible and won't make a mistake. Yeah, right.

Re:Enemy combatant.

[Anonymous Coward]

There is a thing called "justice". Does the punishment fit the crime? He may be a thug, he may be a traitor, but as far as I'm concerned, that has yet to be determined in a court of law (military or civil).

What if the evidence against him was faulty (e.g. faked confessions of other terrorists, under duress uncovered by Pakistani intelligence)? Should we just accept that our government thinks it's "good enough" and let him rot in jail for life?

The government has yet to prove he conspired against us as a terrorist. It's quite likely that he did. But his case will set a precedence for other cases in the near future, and I think it's important that there be a fully defined legal process to protect the innocent. As the homeland security dragnet widens to encompass all citizens here and abroad, the likelihood of a mistake grows as well.

I'm not saying "Free Padilla" (or whatever he calls himself), but I think in the land of the "free" with liberty and justice for all, he should at least be allowed legal counsel, access to the evidence against him, and basic human rights.

Re:Enemy combatant.

[ObviousGuy]

I didn't really like Kanadahar but I think you could infer from that movie how one could be caught up in fighting for the Taliban.

As for joining Al Queda, which is a separate but closely associated militia to the Taliban, that's something completely different.

Re:Enemy combatant.

[aztektum]

This from the guy who's sig is a fucking bitch fest about George Lucas messing with his *OWN* movie.

Re:Enemy combatant.

[Anonymous Coward]

are you going to start to cry now? would you like a tissue?

Re:Enemy combatant.

[Picass0]

I see you've made a real philosophical statement in your SIG as well.

Re:Enemy combatant.

[Picass0]

>> There is a thing called "justice".

Yes there is. The crimes he is accussed of mean Padilla should be tried by the military. US citizens who serve in our armed forced are tried every day in military courts. If it's good enough for them....

>> The government has yet to prove he conspired against us as a terrorist. It's quite likely that he did. But his case will set a precedence for other cases in the near future, and I think it's important that there be a fully defined legal process to protect the innocent.

No argument here. I don't want to see an OJ style circus trial with lawyers who are out to win at all costs.

Re:Enemy combatant.

[neocon]

But the government already has a great deal of discretion in deciding what to prosecute -- the executive already decides whether to prosecute an offense, and what charges to bring.

This is no different.

Re:Enemy combatant.

[anthony_dipierro]

This man lost his rights as a US citizen when he traveled overseas and conspired with a foreign government to harm the United States. Read the fine print on your passport sometime. You can have your citizenship revoked for such actions.

Bzzt. Wrong. Thanks for playing. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

If you are born in the United States, you cannot lose your citizenship, except voluntarily.

Re:Enemy combatant.

[larry bagina]

Johny Taliban should have been shot on the spot for treason.

At least we can take comfort in knowing the WEALTHY WHITE BOY is getting raped up the ass more often than CmdrTaco at his bachelor party once the roofies kicked in.

Re:Enemy combatant.

[neocon]

Bzzzt. Thank you for playing, but you're the one whose got it wrong. By declaring allegiance to a hostile power, in words or actions (such as figting for a foreign military), you give up your citizenship.

To quote the paragraph which has been printed, in one form or other, inside every US Passport ever issued:

Loss of Citizenship. Under certain circumstances, you may lose your U.S. citizenship by performing any of the following acts: (1) being naturalized in a foreign state; (2) taking an oath or making a declaration to a foreign state; (3) serving in the armed forces of a foreign state; (4) accepting employment with a foreign government; or (5) formally renouncing U.S. citizenship before a U.S. consular officer overseas. For detailed information, consult the nearest American Embassy or Consulate, or contact the Office of Citizens Consular Services, Department of State, Washington DC 20520-4818, or call (202) 647-3444.

In other words, your citizenship only lasts until you choose to renounce it, and taking up arms against the US (or even joining a foreign army, except in certain cases) counts as choosing to renounce it, and the courts have upheld this fact again and again.

Re:Enemy combatant.

[Anonymous Coward]

No, no, no .. you have to set your jaw and say "On September 11th, 2001, three thousand people died. That changed everything."

If you do it right, you can justify anything.

I heard some restaurant owner on MSNBC who threw away all his French food (including $1000 Dom Perignon champagne) .. because .. "Three thousand of my countrymen died on 9/11".

Not "because they French are interfering with our desired foreign policy" or "the French are a bunch of pussies" or "we bailed their thankless asses out many times".

What's up with THAT?

Re:Enemy combatant.

[anthony_dipierro]

Sorry for my tone.

To quote the paragraph which has been printed, in one form or other, inside every US Passport ever issued.

Just because it is written in a Passport doesn't mean it's correct. Passports aren't the final authority on interpreting the Constitution, the Supreme Court is. The key ruling here is Afroyim v. Rusk.

(a) Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by Congress before the passage of the Fourteenth Amendment, and a mature and well considered dictum in Osborn v. Bank of the United States, 9 Wheat. 738, 827, is to the same effect. Pp. 257-261 .

(b) The Fourteenth Amendment's provision that "All persons born or naturalized in the United States . . . are citizens of the United States . . ." completely controls the status of citizenship, and prevents the cancellation of petitioner's citizenship. Pp. 262-268 .

Also, you should notice that the passport merely says that you may lose your citizenship, not that you will.

In other words, your citizenship only lasts until you choose to renounce it, and taking up arms against the US (or even joining a foreign army, except in certain cases) counts as choosing to renounce it, and the courts have upheld this fact again and again.

So why is Lindh considered a citizen? And where have the courts "upheld this fact again and again?"

Re:Enemy combatant.

[Picass0]

>>If you are born in the United States, you cannot lose your citizenship, except voluntarily.

Did he voluntarily joined al-Qaida? There ya go.

Re:Enemy combatant.

[neocon]

Lindh is considered a citizen because the government chose not to exercise its right to hold him as an unlawful combatant, just as the government routinely chooses which crimes to prosecute, and what charges to bring.

For a summary of Supreme Court cases concerning the renunciation of citizenship, see this page at the State Department, which cites a number of cases. The cases themselves should be easy enough to look up on FindLaw.

Re:Enemy combatant.

[neocon]

For another rundown on what does and does not result in loss of citizenship under current law, see this article.

Of course, these are tangential questions. al-Muhajir and Hamdi are still considered US citizens, they are merely US citizens who have committed crimes which fall under military jurisdiction, as laid out in Ex Parte Quirin (see above)>

Re:Enemy combatant.

[Anonymous Coward]

The problem is he's still a citizen, and as such, innocent until proven guilty. Even if you are charged with the most heinous of crimes, until guilt is proven you shouldn't lose your citizenship.

It's scary to think that our government can strip us of our Americanism at the slightest hint of wrongdoing.

OJ trials are a failure of our justice system. We the people are in charge of fixing it. Similarly, imprisoning someone indefinitely because we conveniently revoked citizenship before charges are proven is indicative of a broken system, one that we should fix.

Re:Enemy combatant.

[elmegil]

Well then. Your blanket assertion of complete difference without any supporting facts has completely convined me. Er. Maybe not.

Re:Enemy combatant.

[Anonymous Coward]

and conspired with a foreign government to harm the United States

Did he? Isn't it possible he didn't? From what I can tell from the article (I haven't been following this case at all; this is actually the first I've heard of it), he was arrested largely because of a tip from one of the US's Al Qaeda prisoners. I wouldn't exactly consider that to be the most trustworthy source, and would damn hope the FBI had other, more concrete evidense against him, and isn't just arresting random people that may or may not be an actual threat. Just because someone accused him of a really really bad crime doesn't mean he's automatically guilty. There is always the rare, unfortunate possibility that the FBI/CIA screwed up big-time. Hopefully the trial will be fair and not just a formality prior to execution/prison.

This post has a very interesting link to another similar case from WWII. Seems his treatment is legal, since he's considered to have lost his US citizenship and with it all rights in our legal system. I don't necessarily agree with the guilty-until-proven-innocent idea at play here, but they do seem to have precedent for it. Basically, if you're not a US citizen, don't expect to be treated fairly if the FBI/CIA/TLAs suspect you of anything. Your guilt or innocence is completely up to the powers that be. Doesn't seem right to me (I personally believe in justice for all, whatever country they owe their allegiance to), but that's how it is.

Re:Enemy combatant.

[anthony_dipierro]

Lindh is considered a citizen because the government chose not to exercise its right to hold him as an unlawful combatant, just as the government routinely chooses which crimes to prosecute, and what charges to bring.

Two points. First of all, whether or not you are considered a citizen has nothing to do with whether or not you are an unlawful combatant.

Secondly, I don't believe that the government had the right to hold Lindh as an unlawful combatant, since he was a lawful combatant.

For a summary of Supreme Court cases concerning the renunciation of citizenship, see this page at the State Department [state.gov], which cites a number of cases.

Although a person's enlistment in the armed forces of a foreign country may not constitute a violation of U.S. law, it could subject him or her to Section 349(a)(3) of the Immigration and Nationality Act [8 U.S.C. 1481(a)(3)] which provides for loss of U.S. nationality if an American voluntarily and with the intention of relinquishing U.S. citizenship enters or serves in foreign armed forces engaged in hostilities against the United States or serves in the armed forces of any foreign country as a commissioned or non-commissioned officer.

Military service in foreign countries usually does not cause loss of citizenship since an intention to relinquish citizenship normally is lacking.

Emphasis is mine. This directly contradicts your statements that "This man lost his rights as a US citizen when he traveled overseas and conspired with a foreign government to harm the United States." and "By declaring allegiance to a hostile power, in words or actions (such as figting for a foreign military), you give up your citizenship." In fact, it reaffirms my contention that "If you are born in the United States, you cannot lose your citizenship, except voluntarily." And it even cites the same Supreme Court case that I did.

Re:Enemy combatant.

[elmegil]

When it comes to stripping someone of the rights to due process that they as a citizen of the USA are guaranteed by the constitution, I'd say that's pretty different. Somehow, it seems to me that such an extreme action, while perhaps sometimes justified, does require a somewhat higher standard than the usual prosecutorial discretion.

Of course, I don't trust the government to use its discretion only for good, as apparently you do. And I think my primary counter example of specifically not using the discretion for good in this particular issue (John Walker Lindh) stands pretty clearly. You still fail to explain how JWL, as a US citizen actively participating in the military of a government known to be an "enemy" of ours, could possibly have any doubt as to his status as an "enemy combatant", much less still retain his due process rights in the face of that status. "They didn't think they could link him" seems pretty lame in the face of him having a gun pointed our way. That doesn't seem like "discretion" it seems like "preferential treatment".

Re: Enemy combatant.

[Black Parrot]

> This man lost his rights as a US citizen when he traveled overseas and conspired with a foreign government to harm the United States.

You, like the fascists running our government these days, are deliberately obscuring the difference between "accused terrorist" and "terrorist".

There's a reason for our constitutional rights to counsel and trial by a jury of our peers.

Re:Enemy combatant.

[neocon]

Let's look at the quote you picked, shall we?

if an American voluntarily and with the intention of relinquishing U.S. citizenship enters or serves in foreign armed forces engaged in hostilities against the United States or serves in the armed forces of any foreign country as a commissioned or non-commissioned officer.

(emphasis mine). That's an `or'. Plain and simple. In other words, serving in a foreign armed force which is engaged in hostilities is grounds for loss of nationality.

So currently, although Lindh is still a citizen, he has taken actions which render his citizenship forfeit. Likewise, al-Muhajir is still a citizen, though he is a citizen who is being held as un unlawful combatant, though only because the government has not yet chosen to present a court with his actions.

At any rate, as you separately point out:

First of all, whether or not you are considered a citizen has nothing to do with whether or not you are an unlawful combatant.

This, at least, is absolutely true. This is why the discussion of al-Muhajir's citizenship is strictly tangential to the question of his detention.

Re:Enemy combatant.

[Picass0]

Padilla will be tried.

Why do you assume Padilla is entitled to a criminal trial in state or federal court rather than a military tribunal? Before you say that one is fair and one is not, I'll remind you that many Americans in the 4 armed services are tried by military tribunal and get fair trials. And many Americans get screwed in civil coart.

It would be nice if you cared as much about the rights of people who would have been killed if Padilla's bomb attack had happened.

Re:Enemy combatant.

[Anonymous Coward]

There were some very unpatriotic homeless dumpster divers that night, let me tell you.

Re:Enemy combatant.

[neocon]

So which is it? You don't trust the government's discretion, so you think they should be forced to apply the harshest standard, whether they feel it is warranted or not?

That's the same logic used to justify mandatory minimum sentencing laws, and I have to say, I just don't buy it.

Re: Enemy combatant.

[Picass0]

>>"You, like the fascists running our government these days..."

I'm not fascist. I'm just a guy who thinks the terrorists who are still planning attacks are the bad guys, not those who seek to stop them. The tone of what you have written suggests you feel otherwise.

Before you feel the need to lecture me on the law, you should read it.

Federal Code TITLE 8 > CHAPTER 12 > SUBCHAPTER III > Part III > Sec. 1481. Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions

(2)

taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or

(3)

entering, or serving in, the armed forces of a foreign state if

(A)

such armed forces are engaged in hostilities against the United States....

Re:Enemy combatant.

[Picass0]

Actually, the burden for stipping a person of citizenship is rather high and very explicitly defined:
US CODE TITLE 8 > CHAPTER 12 > SUBCHAPTER III > Part III > Sec. 1481.

Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions

(a)

A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality -

(1)

obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or

(2)

taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or

(3)

entering, or serving in, the armed forces of a foreign state if

(A)

such armed forces are engaged in hostilities against the United States, or

(B)

such persons serve as a commissioned or non-commissioned officer; or

(4)

(A)

accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or

(B)

accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or

(5)

making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or

(6)

making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or

(7)

committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.

(b)

Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily

Re:Enemy combatant.

[Scarblac]

US citizens who have committed crimes

ITYM "Who are suspected of crimes..."

Re:Enemy combatant.

[Anonymous Coward]

The decision to be nice with the whiteboy was the choice of the exuctive branch... not the judicial.

Re:Enemy combatant.

[tricorn]

Let's look at the quote you picked, shall we?

if an American voluntarily and with the intention of relinquishing U.S. citizenship enters or serves in foreign armed forces engaged in hostilities against the United States or serves in the armed forces of any foreign country as a commissioned or non-commissioned officer.

(emphasis mine). That's an `or'. Plain and simple. In other words, serving in a foreign armed force which is engaged in hostilities is grounds for loss of nationality.

The only reasonable parsing of that phrase is:

... if ((an American (voluntarily and (with the intention of relinquishing U.S. citizenship)))(((enters or serves) in (foreign armed forces engaged in hostilities against the United States)) or (serves in (the armed forces of any foreign country) as a (comissioned or non-commissioned) officer)))."

Re: Enemy combatant.

[James_Duncan8181]

(1) I (2) detect (3) selective quoting

Re:Enemy combatant.

[91degrees]

This man lost his rights as a US citizen when he traveled overseas and conspired with a foreign government to harm the United States

No he didn't. The reason - these rights are not granted by the government. Hence the government can't take them away.

Re:Enemy combatant.

[anthony_dipierro]

if an American voluntarily and with the intention of relinquishing U.S. citizenship enters or serves in foreign armed forces engaged in hostilities against the United States or serves in the armed forces of any foreign country as a commissioned or non-commissioned officer.

That's an `or'.

Umm, clearly the or is applicable only to "enters or serves in." It doesn't separate "voluntarily and with the intention of relinquishing U.S. citizenship" from the rest of the sentence. Especially since your assertion directly contradicts the other quote.

Military service in foreign countries usually does not cause loss of citizenship since an intention to relinquish citizenship normally is lacking.

The second "or" on the other hand doesn't include the "voluntarily part." If you serve as an officer, the presumption is that you have voluntarily relinquished your citizenship. At that point you can probably lose your citizenship. This is made clear in another quote.

Service as a high-ranking officer, particularly in a policy-making position, could be viewed as indicative of an intention to relinquish U.S. citizenship.

Seriously, you lost this one.

Re:Enemy combatant.

[anthony_dipierro]

It was made by the executive branch in part because they knew they would have gotten slapped down by the judicial.

Re:Enemy combatant.

[neocon]

Clearly I misparsed that sentence, yes. This remains tangential to Mr. al-Muhajir's case, however, as he remains a US citizen -- he's just a US citizen who is charged with a crime (waging war against the US in violation of the laws of war) which falls under military jurisdiction.

Re:Enemy combatant.

[babbage]

A little boost in security here, a little loss in liberty there. Where's the harm in that?

You think if they have Benjamin Franklin spinning in his grave fast enough, they'll be able to power an internal combustion engine with it?

Re: Enemy combatant.

[Picass0]

>> "(1) I (2) detect (3) selective quoting"

Before you get your panties in a wad - I posted this portion of the US Code in it's entirety here. I think for the sake of a Federal or military court these will be the lines of special import. It was not an effort to distort the meaning.

Re:Enemy combatant.

[dirk]

I feel like I'm probably wasting my breath, but these things only apply if what he is ACCUSED of is true. He has been ACCUSED of renouncing his citizenship and taking up arms against america. He has not admitted this. It has not proven that this is the case. Therefore, he still should have all rights as a US citizen. Otherwise, there is nothing from stopping the government from asserting that any random person has renounced their citizenship and taken up arms against the US, whether true or untrue. They point most everyone is trying to make, and you seem to be continually glancing over, is that this man is not guilty of anything. He has been ACCUSED of things. Being accused is completely different than being guilty. Until he is guilty (or at the least admits to these things) he should have all the rights afforded to him as a US citizen.

Re:Enemy combatant.

[neocon]

I'm sorry, no. Certain suspected crimes, including the crime of waging war illegally against the United States, fall under military jurisdiction, and are subject to detention as an enemy combatant, and possible trial before a military commission.

This has been true since the earliest days of the republic (indeed, presidents Jefferson and Madison, who presumably knew a thing or two about Constitutionality, used this practice to detain port saboteurs in the employ of the French government during their terms in office), and has been repeatedly upheld by the US Supreme Court, most notably in the 1942 case Ex Parte Quirin, which grew out of a case very similar to Mr. al-Muhajir's.

Re:Enemy combatant.

[elmegil]

I feel they should be consistent, not arbitrary. Why are you having difficulty comprehending this?

If they didn't treat JWL as an enemy combatant, given the obviousness of his case, I don't think they have any call to treat Pedillo al-Muhawhatever or Hamdi any worse; as far as it goes, if they have evidence that they were actually a real threat, why does it have to be kept secret (oh yeah, they get to wave their hands and claim national security for anything that they want kept secret, and we the people never get to determine whether it really was justified or just another witchhunt; keep in mind that assertions that Pedillo was going to do this or that aren't evidence, they're assertions). If they want to treat Pedillo & Hamdi this harshly, then I can't understand what standard they could possibly have used to decide that JWL didn't deserve the same treatment (aside from the obvious point I've repeatedly made about the fact that JWL actually had parents with money who were going to raise hell if he'd been treated that way).

As for mandatory minimum sentencing, again that's a completely different issue. I think that there is a clear difference between normal prosecutorial discretion, normal judicial discretion (which is what mandatory minimums affect), and the decision to strip someone of their constitutionally guaranteed rights based on secret evidence. If you were actually bothering to listen to what I've said, you'd note that I see a point where, if with sufficient due process it is shown that someone is actually proven within the system to be an "enemy combatant" I have no objection to the rights being stripped.

The problem which you appear to be ignoring is that it is astoundingly stupid to trust the government to make that decision with no checks whatsoever; "we have secret evidence that this person is an enemy of the state and hereby stripped of their rights" offers no means to identify much less redress cases where the government is wrong, either through incompetence or through malice. I've seen enough cases of both in the span of my lifetime that I do not believe it is even slightly unreasonable for me to believe that the government is going to strip someone of their rights incorrectly, and there's not a damn thing anyone can do about it.

The reason I keep coming back to JWL is not because I'm a bloodthirsty bastard who wants all of 'em hung (despite your attempts to paint me into that corner). It's because there, already, we have a clear example where one individual who obviously should have been declared an enemy combatant and not given any constitutional rights (if you accept that such treatment of enemy combatants is correct) was not declared so. Discretion applied that appears to favor someone because their parents were in a position to make trouble by virtue of their wealth and position is not justice in any sense, nor is it an appropriate use of discretion. If this administration can't apply reasonable standards of discretion in that case, I hardly expect them to do so correctly in any other case.

Jose Pedillo could be everything and all the threat the administration claims, but they've already squandered any credibility they had to "just be trusted to get it right" by letting JWL off the hook.

Re:Enemy combatant.

[neocon]

Again, you can't have it both ways. Either prosecutorial discretion exists in deciding what crime to try someone for, or it doesn't. If it does, I see no reason why that would change simply because one of the charges being considered falls under military jurisdiction.

In other words, the fact that we felt that Abdul Hamid did not warrant such treatment does not automatically mean that Yasser Hamdi or Abdullah al-Muhajir do not warrant such treatment. An excellent feature of our judicial system is that it does not lock prosecutors into seeking a harsh sentence or a harsh charge whether they feel it is warranted or not. Proponents of mandatory-minimum-sentencing want to discard this feature, and it appears that you do to.

Re:Enemy combatant.

[j_w_d]

This man lost his rights as a US citizen when he traveled overseas and conspired with a foreign government to harm the United States.

Which foreign government would that be? If he was conspiring with a foreign government, this was treason. If he was conspiring with terrorists, he is a criminal.

Re:Enemy combatant.

[Picass0]

Shame that you posted as an AC. If you post with a screenname I'll reply.

Re:Enemy combatant.

[elmegil]

You completely ignore the difference between discretion over what crime to try someone for and what RULES to apply to that trial. We're not talking about prosecution seeking a particular sentence or a particular crime, we're talking about seeking a particular venue and set of rules for the trial.

The fact is, it is quite clear that Abdul Hamid did warrant that treatment by any rational person's definition of what constitutes an "enemy combatant". And therefore it is quite clear that any "discretion" that ought to be applied to the RULES of the trial has been abused.

BTW I was just reminded of the following:

Attorney General John D. Ashcroft approved the eavesdropping rule [on attorney/client conversations] on an emergency basis last week, without the usual waiting period for public comment. It went into effect immediately, permitting the government to monitor conversations and intercept mail between people in custody and their attorneys for up to a year at a time.

Now, tell me again how it would be a threat to our national security to let Pedillo talk to a lawyer?

Re:Enemy combatant.

[neocon]

Are you really arguing that prosecutors don't decide what jurisdiction to try cases every day?

Just today, prosecutors are deciding whether to press charges in state or local jurisdiction against the kidnappersof Elizabeth Smmrt. Recently we saw a similar discussion over wheher to first press federal or state charges against the two arrested for the beltway sniper murders.

This is the same thing, save that prosecutors had to decide whether to try al-Muhajir in federal or military jurisdiction. As noted in the story, a federal judge has twice now validated their decision to apply military jurisdiction due to the nature of al-Muhajir's alleged crimes.

Re:Enemy combatant.

[elmegil]

Are you really completely missing the point I've made in the last three posts? Apparently so. Either you're deliberately misconstruing my posts or you're stupider than GWB.

Re:Enemy combatant.

[neocon]

No, I'm simply not buying the artificial distinction you are trying to make. Military jurisdiction is simply another jurisdiction, much as federal jurisdiction is distinct from state.

Indeed, soldiers who are accused of committing crimes while on duty are already subject to military jurisdiction, every day. There crimes simply happen to fall under military jurisdiction, much as the crimes for which the government has chosen to prosecute Mr. al-Muhajir do.

Re:Enemy combatant.

[sql*kitten]

There is some very damning evidence that this piece of shit wanted to detonate a radiological device on our soil.

First let me say that if he's a terrorist or a traitor, he deserves to hang, and I'll tie the knot myself. Problem is, hang him and he's a martyr, imprison him and other terrorists will hijack planes to free him, exile him and he's free to wreak havoc.

But if there's all this evidence, why not try him, even in a military court in closed session? That's a serious question. Remember: if innocent people are arrested, that means the real terrorists are still at large.

Re:Enemy combatant.

[mink]

Funny how it went from 3000 people (of more then one nationality died) to 3000 Americans died.

Re:Enemy combatant.

[tom's a-cold]

So which of the criteria you cite applies to Padilla? Which foreign state did he declare allegiance to? Which foreign military did he enlist in?

Anyway, the State Department guidelines you cite are not the law: they're policy. Law is enacted by Congress and interpreted by the court. And the law is actually more nuanced: the criteria cited above are evidence of intent, but the case needs to be made in court. There are instances where several of these criteria were met, yet the courts still decided that citizenship could not be revoked. I recall that the case that made it to the Supremes involved an American who also had Israeli nationality and served in their military. He's still a US citizen.

And that day in court is the central point in the Padilla case as well. Ashcroft and the rest of the Bush junta claim that they can hold him because they say so, and deny him counsel because they say so, and that the courts have no authority to interfere. All the semantic games about him being an "unlawful combatant" are really just subterfuges to assign him to a fictitious category of person with no rights so they can exercise arbitrary power to detain without charge and punish without judicial oversight.

One well-understood goal of terrorism is to cause a government to adopt repressive measures that undermine its legitimacy and popular support. The present administration is brutal, power-mad and ignorant enough to have fallen into this trap both domestically and internationally. Furthermore, I have little doubt that they intend to use these same arbitrary powers to harass domestic critics of their authoritarian and un-American policies if they think they can get away with it. So the more judicial smackdowns they receive, the better. Bush's real argument is that he knows better than the Constitution (perhaps because of his frequent conversations with Jesus). But just because you bought the office doesn't mean you're fit to hold it, and self-confidence is not the same as being right. Anyway, unchecked executive power is a feature of banana republics and medieval despotisms, not of civilized society. Allowing our government to be hijacked by the executive branch will not solve our problems with terrorists. More likely it will exacerbate them.

Re:Enemy combatant.

[neocon]

With due respect, you would do yourself a service to read the thread before jumping in in the middle.

While there is a strong argument to be made that al-Muhajir's actions put his citizenship in question, this is entirely tangential to the case at hand. As ruled in Ex Parte Quirin (go read it -- it's cited at least a dozen or two times in the thread), the charges leveled against Mr. al-Muhajir are charges which fall under military jurisdiction regardless of whether the suspect is a citizen (as Mr. al-Muhajir still is at the moment, and as Mr. Haupt was in the case leading to Quirin) or not.

Now, I understand that you've come to this thread several days late (and more than a few dollars short), but given that those waging war against the US, whether in wartime or not, and whether they are citizens or not, have been subject to military jurisdiction since the earliest days of the republic, and given that this practice was upheld by the US Supreme Court in the Quirin case sixty years ago, don't you feel just a little bit silly trying to suggest that this is something that Bush is inventing? No, really, don't you?

And given that this is a practice so old that even presidents Madison and Jefferson used it against French port saboteurs during their own terms in office, your using a claim that this is something new as a basis for slander against Bush obviously isn't helping your case. But perhaps you believe that Madison, the author of the constitution, didn't know what it said? That is the logical conclusion of your statements...

POW? Which war?

[jotaeleemeese]

Under the orders of which army is this person?
Which foreign power is waging war against the US?

No matter how much the US goverment hype this up, terrorists are common criminals, not regular armies.

Re:POW? Which war?

[neocon]

Your assumption, presumably, is that war can only be against a foreign state. This has simply never been the case -- indeed, in the earliest days of this republic, presidents Jefferson and Madison waged war against the Barbary Pirates of North Africa, a shadowy network of pirate groups affiliated with no specific state, though receiving aid and sponsorship from several of the region's governments.

Sounds kinda familiar, doesn't it?

Re:POW? Which war?

[Anonymous Coward]

Up above it's been proven the pirates were acting on behalf of specific governments, commanded by navy officers.
You dont do that whole reading comprehension thing to well do you?

Re:POW? Which war?

[neocon]

No, no it hasn't -- go read the thread before you jump in in the middle.

That the pirates operated independently can be confirmed both by noting that they reported not to any particular ruler, but received aid from many rulers of the region, and indeed often played one against another (this is why, for example, it was the Bey of Tunis who reigned in the pirates after the sack of Tripoli, without consulting the Bey of Tripoli at all), and by noting that, in seeking congressional approval for action, Madison got approval for action against the pirates and such states as might support them, not against any specific state.

All of this is documented at length near the beginning of Max Boot's The Savage Wars of Peace: Small Wars and the Rise of American Power. Do you have a reference which backs up your claims?

How can you be that stupid...

[jotaeleemeese]

What do we need to do so people with thick skulls like you understand the difference between a foreign goverment and army in a declared war and an organized gang of derided individuals?

Was Timothy McVeigh an enemy combatant then?
Was the Unabomber an enemy combatant?
What about the snipper?

Do you get it or do you need a trepanation?

Jeez....

Re:How can you be that stupid...

[neocon]

One more time:

If you're going to ask the same question eight times in the same thread, do us all the courtesy at looking at one of the other places you asked it and it was already answered. Here, for example, or here.

Re:How can you be that stupid...

[Sylver Dragon]

Ok, looked at both of your links, and both of them reference piracy, which is specifically given to the jurisdiction of military tribunals. In fact, in your other link, to Ex Parte Quirin, the judges make mention of the fact that piracy falls under the articles of war.
Further, in that same decision, it is noted that there was a declared war, and that:
Citizens who associate themselves with the military arm of the enemy government, and with its aid, [317 U.S. 1, 38] 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.
Emphasis added.

This decision is simply not applicable in the case of Padilla. First, Padilla is not being accused of piracy. As such, the arguments about piracy being tried by a military tribunal are invalid. Second, there is no enemy govenment which provided aid.
In the case of Padilla, it would seem that the laws concerning organized crime and/or treason would be more applicable. Of course, this wouldn't allow the government to hold Padilla indefinatly, without trial, access to a lawyer, or torture him.
Its not that I want to see Padilla set free, or that I want to see lienancy given to a terrorist. I simply want to make sure that we don't end up in a situation where the government is able to make someone disappear, simply by declaring them an 'enemy combatant'. And I feel that the most obvious demarcation point between unlawful beligerent and criminal, is the existance of a declared war on an enemy government. Anything else is far to vague.

Re:How can you be that stupid...

[neocon]

Go reread what you posted -- specifically:

Citizens who associate themselves with the military arm of the enemy government, and with its aid, [317 U.S. 1, 38] 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.

(emphasis mine). By not associating himself with a government, al-Muhajir is outside the scope of the Hague Convention, and thus falls under a different charge within military jurisdiction (as the Hague convention makes no statements either way about non-state actors). The decision does not say (or even appear to say, unless one quotes as selectively as you chose to) that this is the only crime which falls under military jurisdiction, or the only way to be a combatant against the United States.

Indeed, a few paragraphs later, the Quirin decision makes this much more explicit, in language directly applicable to al-Muhajir:

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.

It doesn't get any clearer than that, now does it?

Re:How can you be that stupid...

[Sylver Dragon]

It doesn't get any clearer than that, now does it?

Not particularlly, the whole point of the current argument is whether or not al-Muhajir should be considered an enemy combatant. In the paragraph you cited, the court was stating that those involved in the case were clearly within the boundries of military jurisdiction. Given that this is point under argument for al-Muhajir, you can't simply assume it to prove it. Personally, I don't think that the decision which you referenced is really valid for comparison. In that case the judges had little doubt whether the law of war applied to them, as stated in the first sentance of your citation.
As for something outside of the Hague Convention providing reason for al-Muhajir to be treated as a spy, you'd have to point something out to me before I buy that.

Re:How can you be that stupid...

[neocon]

Go reread the second paragraph quoted. It lays out a specific set of criteria which are themselves `enough' for Haupt et al to be considered enemy combatants, and detained as such, namely that the suspect:

• were plainly within those boundaries
• were held in good faith for trial by military commission
• [were] charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform

These criteria fit Mr. al-Muhajir perfectly, and as the judges in that case note (and the judge in this case upheld -- remember, his detention as a combatant was confirmed), those are enough to render the case subject to military jurisdiction.

Stop embarrasing yourself....

[jotaeleemeese]

Quoting from your link

"...Citizens who associate themselves with the military arm of the enemy government,..."

What is the goverment to whose military arm this person is associated?

Again, Jeeez...

Re:Stop embarrasing yourself....

[neocon]

Do you think that if you ask the same question in four places, that changes the fact that its already been answered in this thread several times? It has never been the case that wars can only occur with established governments -- look at the war on the Barbary Pirates, waged by presidents Jefferson and Madison (who presumably knew a thing or two about what the Constitution says).

Re:Stop embarrasing yourself....

[neocon]

It's also worth noting that you quote very selectively, removing the context of the quote you chose:

Citizens who associate themselves with the military arm of the enemy government, and with its aid, [317 U.S. 1, 38] 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.

(emphasis mine). By not associating himself with a government, al-Muhajir is outside the scope of the Hague Convention, and thus falls under a different charge within military jurisdiction (as the Hague convention makes no statements either way about non-state actors). The decision does not say (or even appear to say, unless one quotes as selectively as you chose to) that this is the only crime which falls under military jurisdiction, or the only way to be a combatant against the United States.

Indeed, a few paragraphs later, the Quirin decision makes this much more explicit, in language directly applicable to al-Muhajir:

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.

It doesn't get any clearer than that, now does it?

Re:Stop embarrasing yourself....

[j_w_d]

Barbary Pirates ... were acting within the view point of the governments of the small states along the coast of North Africa (Algiers, Tripoli, Tunis, etc.). These governments regarded the "pirates" as a legitimate and important source of revenue from tribute, plunder, ransom and slaves. They were essentially privateers "legally" operating against shipping that traversed waters claimed by their governments. Most Eurpopean states who shipped in the Mediterranean basin paid tribute to the Barbary governments. These are not the same as real pirates operating in the Carribean and elsewhere, who were acknowledge outlaws. The US lost a frigate in the Barbary conflict and it was not lost to "pirates." The Bary war WAS waged with established governments. The fact they were feudal and unlike the contemporary European governments doesn't change that.

War actually was declared by Tripoli against the US. That is WHY the "shores of Tripoli" are mentioned in the Marine Corps anthem. The piracy was ended when treaties were signed between the US and presentatives of the Barbary states including Algiers. SO, perhaps

Re:Stop embarrasing yourself....

[j_w_d]

Jeeze, logging in to /. part way through composing a comment can be a mistake.

To conclude the forgoing, the author to whom I was commenting should probably dig a little deeper and be more careful with his choice of examples. The Barbary pirates were acting legally within the view of the governments that they served. They were not private, civilian criminals. The barbary pirates operated from military ships belonging to the navies of the respective Barbary states. The pirates WERE part of the respective navies. The states themselves were actually the "pirates." So aside from being Muslim, there is no parallel between the Barbary Pirates and the al Qaeda.

Re:Stop embarrasing yourself....

[neocon]

That the Barbary pirates were acting legally within the purviews of their own governments is one hundred percent irrelevant, just as it is irrelevant that al Qaeda, in attacking the WTC, was acting legally within the purview of the Taliban, or that the Wermacht was acting legally within the purview of the Nazi regime when it stormed into Poland and France.

What is relevant to the discussion at hand is that we set out to make war on the pirates and such states as sponsored them, much as we now make war on al Qaeda and such states as sponsor them.

Re:Stop embarrasing yourself....

[neocon]

That's not actually correct. The pirates actually worked with a number of governments in the region, including the Beys of Tunis and of Tripoli, and even played them against each other in search of support. They were not affiliated with any one nation of the region, which is why we brought the war to them, and to their supporters, not just to any one nation of the region.

Re:Stop embarrasing yourself....

[j_w_d]

The Barbary "pirates" were generally commanded by admirals (Reis) or lesser naval officers. What I have read indicates that the "pirates" were simply the respective navies of the various small states along the north coast enforcing the tribute requirements of the local governments. They were not independent operators and their vessels were not privately owned. Infact, while we treated with the individual city-states and regional governments, they were under the rule of the Ottoman Empire, which included Algiers and Tunisia by the end of the 17th century. The Ottomans were pretty lax in the region though. Tunisia and Algiers declared war on the US, and the reason we "brought war to them," to steal your phrase, is because Jefferson and his successors did not wish to pay tribute to the states of the Barbary Coast. The use of the term "pirates" is in part an attempt to lower the standing of the little states involved in the view of the populace and politicians of the US. Remember that even Jefferson's government was trying to negotiate the terms of a tribute sytem with Tunisia and Algiers, while TJ himself was rabidly opposed to the very idea ('course the present situation would piss him no end. He advocated the right to keep and bear arms as a soveriegn cure for politicians, and preyed that the US would never go 20 years without a revolution). No, the Barbary war really was a war with real states. They were penny-ante states, who could not really militarily threaten much more than merchant shipping. They were in no sense a parallel to the al Qaeda, though you could make a case for them resembling the Taliban government of Afghanistan, which was a pretty chicken-manure outfit.

Re:Stop embarrasing yourself....

[neocon]

Actually no -- most of the pirate commanders worked with more than one of the region's sovereigns, and regularly played one off against the other. Indeed, After the sack of Tripoli, it was exactly the Bey of Tunis who used his direct influence with the pirate chieftans to reign them in, without consulting the Bey of Tripoli at all.

This is precisely why Madison sought (and obtained) authorization for the use of force not merely against Tunis or Tripoli, but explicitly against the pirates and such rulers as supported them.

A good history of the era and it's fights can be found near the begining of Max Boot's The Savage Wars of Peace: Small Wars and the Rise of American Power, by the way.

As for Jefferson, it was precisely he who bypassed the Congress in pursuing war against the Barbary Pirates without a declaration (Madison sought, and got such a declaration), perhaps because you take his words on rebellion far too literally (much as if you believed that president Hoover actually wanted to send inspectors around with poultry trucks to ensure that there really was `a chicken in every pot' :-) ).

Re:Stop embarrasing yourself....

[j_w_d]

Certainly looks like some sources disagree. Of course it also highlights the confused nature of some of these issues. As far as Jefferson's views about revolution are concerned, remember who he was. As the author of the Bill of Rights, you can get a very clear idea that he did not really trust government much, if at all.

Also, I rather suspect that if you really though that it is legitimate to compare Hoover and Jefferson, then perhaps you also trust Bush, Ashcroft, Rice and Rumsfeld to know what they are doing. You may also believe that US media give you fair and unbiased reportage.

Re:Stop embarrasing yourself....

[neocon]

You seem rather a bit... confused.

In particular, you need to go back and study some more if you think Jefferson authored the Bill of Rights.

... or if you read my post as comparing Hoover to Jefferson for that matter.

I will hunt you down in this thread...

[jotaeleemeese]

... until you answer the relevant questions, shut up, or admit you are mistaken.

French saboteurs were under the orders of the French goverment. A foreign goverment.

These alleged terrorists banded amongst themsleves, they represent no army and no goverment, they represent only themselves and their co-conspirators. In short, they are a criminal organization.

Criminal organizations are dealt with with common law, no matter how dangerous they are.

You are stretching laws that are not meant to fight individuals but organized armies and hostile goverments.

Re:I will hunt you down in this thread...

[pauldy]

This is a hostile force capable of an organized millitary. End of Story. They are the enemy not those who are fighting against them. At least show them a little latitude instead of throwing all off the benifit of the doubt towards the people trying to kill americans. You would think this would be self evident but there sure is a small but vocal percentage that just doesn't get it.

Re:I will hunt you down in this thread...

[neocon]

Hmm, yes -- if you're going to ask the same question eight times in the same thread, do us all the courtesy at looking at one of the other places you asked it and it was already answered. Here, for example, or here.

Oh shut up. really.

[jotaeleemeese]

Name the entity that is in war against the US, please do us a favour and do it.

Re:Oh shut up. really.

[neocon]

You do repeat yourself, don't you?

If you're going to ask the same question eight times in the same thread, do us all the courtesy at looking at one of the other places you asked it and it was already answered. Here, for example, or here.

No, it is not war.

[jotaeleemeese]

It is called terrorism people, get it straight. Find a worthy cause for your ire.

For those inisisting this is a war, write here the entity you are waging war against: _________

And write here the criteria by which you would considered the war over: __________

Did you win the war against Timothy McVeigh and their pals or are they hidden away as POWs? Yuor thoughtful answer here: _________

Re:No, it is not war.

[neocon]

One more time: if you're going to ask the same question eight times in the same thread, do us all the courtesy at looking at one of the other places you asked it and it was already answered. Here, for example, or here.

No it is not war, it is terrorism.

[jotaeleemeese]

The target is completely irrelevant, the pain caused sadly is as well.

War is clearly differentiated from terrorism, in a war you have an army to fight against and a goverment directing that army. You have neither of those when fighting terrorism.

Terrorists are the most vicious of common criminals and they should be fought as such. Aiming blindly breaking your own freedoms in the process will not stop them and will only erode your hard earned rights.

Look, look!

[jotaeleemeese]

An authentic FBI or CIA agent in /.!

He knows the evidence that nobody else in the public has seen!

And he knows sooo much that has already passed judgment!

Police, judge, jury and executioner emobodied in one power (why to meedle with the judiciary or the legislative). That is what is in offer and this FBI/CIA agent has already decided that it works.

Rejoice!

Re:Look, look!

[pauldy]

What are you trolling for? He didn't judge anyone he just stated facts. This guy is a member of al qaed. In case you missed it these are the people responsible for sept 11th. This makes him an enemey combatant and they can deny him a lawyer all they want. More than likely this rulling will be ignored just like his last.

http://www.cnn.com/2002/LAW/12/04/padilla.ruling /

You are hilarious....

[jotaeleemeese]

If people fighting for the Taliban have such tenous links to al Qaeda then, answer (dotted lines for you thoughtful answers courtesy of truly yours):
-Why did the US attack AFghanistan in the first place: ............
-Why did the US went to the effort to flight people of the Taliban army to Gaunatanamo for further interroagation?........

The whole point of bombing Afghanistan was that the Taliban were supporting al Qaeda, this guy was part of the Taliban army and may I say, would have more insight into US affairs than an AFghani that has never left his country. Would not you want to use your wide self annointed powers to apply the necessary persuassion to obtain more information?

Re:You are hilarious....

[neocon]

Leaving aside your misrepresentation of the post you're responding to (no one is questioning the link between the Taliban and al Qaeda, or at least no one but you), let's look at what you're saying

Are you really arguing that the government should have no choice but to seek the harshest possible charges every time someone is arrested? That they should not have the discretion to judge someone not worth trying for the harder-to-prove charge?

This is the same logic which gives us mandatory-minimum-sentencing laws, and I have to say, I just don't buy it.

Also, for the record, an `Afghani' is a unit of currency used in Afghanistan. A native of Afghanistan is an `Afghan'.

Yeah, lest kill him.

[jotaeleemeese]

You have (somehow) all the facts. Nice to know that some people in /. have inside knowledge that is not available to the rest of the populace.

Grrreat.

[jotaeleemeese]

What is the foreign state for which this person served?

Where is the evidence?

Where do you have the video of his oath?

Can you spell c-o-u-r-t-o-f-l-a-w or do I need you to explain to you where questions like the ones above should be answered?

Re:Grrreat.

[pauldy]

Your treating this as a criminal case and well it just isn't. Padilla is a memeber of an organized millitary force who has already engaged targets on American soil. Can you spell e-n-e-m-y- -c-o-m-b-a-t-a-n-t.

Re:Grrreat.

[Quixotic Raindrop]

No, he is NOT a member of an organized military force. He is a member of a separate, semi-organized, non-military something or other, ALLEGEDLY.

Under NO circumstances, NONE, are 4th, 5th, and 8th Amendment rights stripped to someone who has not ACTUALLY BEEN CONVICTED OF A CRIME. Let's revisit that. The USC DOES NOT PERMIT the aribtrary denial of those rights without conviction, in a properly formed court (Article III court, not Article I), by a jury of the peers of the accused. ONCE CONVICTED, the person formerly known as a defendant then loses lots of things. However, in order for the DOD, DOJ, or any other Executive branch agency to deny a U. S. Citizen their rights, they must first CONVICT them, earlier posts notwithstanding (they conflict with the Constition, and are therefore Unconstitutional and uneforceable).

Re:Grrreat.

[neocon]

Please read the thread you've come so lately to before posting. Waging war against the United States is a crime in military, not civilian jurisdiction. This has been true since the earliest days of this republic, and has been repeatedly upheld by the US Supreme Court, most notably in the case Ex Parte Quirin, which grew from a case very similar to Mr. al-Muhajir's.

This fact has been widely pointed out in this thread.

Re:Grrreat.

[Quixotic Raindrop]

Except that, one has to have actually 1) been a member of an enemy military (which Al Quaeda is not, see below), and 2) actually have taken a military action, which he has not. Believing that someone might, in the future, take military (military-esque) action against the United States does not fall under DOD jurisdiction.

Citizens who associate themselves with the military arm of the enemy government[...] (quoted from Ex Parte Quirin)
Al Quaeda is not the military arm of any government. Ex Parte Quirin is irrelevant.

Re:Grrreat.

[neocon]

That's not actually correct.

Go read Quirin, which I linked above. In particular, the Supreme Court ruled:

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.

Re:Grrreat.

[Quixotic Raindrop]

I did read it. The Court ruled that the conceded facts included that Quirin, Haupt, et al., were members of the Military, and that the Articles of war applied.

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, [317 U.S. 1, 38] 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. Cf. Gates v. Goodloe, 101 U.S. 612, 615 , 617 S., 618. 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.

(bold/italic emphasis mine)

As the Court has pointed out in several places, Quirin, Haupt et al. were all members of military forces of nations at war with the United States. This causes two serious problems for DOD and DOJ, in the present case. First, there has been no Declaration of War, which would be required to prosecute under the Articles of War. Second, the defendent in the present case is a Citizen of the United States, and is not a member of any country's military. There is no justification for subjecting the defendant to a tribual.

Re:Grrreat.

[neocon]

Look again at that quote:

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, [317 U.S. 1, 38] 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. Cf. Gates v. Goodloe, 101 U.S. 612, 615 , 617 S., 618. 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.

(emphasis mine) No one is arguing that al-Muhajir is in violation of the Hague Convention, for the simpe reason that, as the justices point out in the passage you cite, the Hague Convention only governs the actions of those in state-run militaries.

However, as I pointed out elsewhere in this thread, the judges go on to state quite explicitly that the question of whether Haupt et al. are in violation of the Hague Convention is completely distinct from the question of whether they are subject to military jurisdiction. Specifically, the judges note:

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.

That's pretty clear -- the facts as stated in this quote exactly match al-Muhajir, and as the judges say, are enough to try them as enemy combatants.

Re:Grrreat.

[Quixotic Raindrop]

I disagree completely (as if you can't tell by now). In order to be subject to tribunal, they must be members of the military of an enemy country. That much was established in Quirin, and is part of the "conceded facts" referred to. It does not match exactly, and in fact does not match at all, the present case.

Re:Grrreat.

[neocon]

Go read the case more carefully, Raindrop. The `conceded fact' was that they were in fact members of a foreign military. In other words, the defendants were not arguing that they were innocent, they were arguing that they were entitled to civilian jurisdiction. This is par for the course in the Supreme Court, which pretty much never considers matters of guilt or innocence, only matters of law.

The court considered the facts, conceded facts included, and judged that military jurisdiction was appropriate. In doing so, they laid out the reasons why military jurisdiction was correct for the case, which I have quoted for you twice already:

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.

Did you read that? It's perfectly explicit: it is enough that these criteria match for them to be tried by military tribunal:

• [the petitioners] were plainly within those boundaries
• [the petitioners] were held in good faith for trial by military commission
• [the petitioners are] charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform

All of these directly apply to Mr. al-Muhajir, and as clearly stated in Quirin, that's enough to try him in military jurisdiction.

Simply asserting that the law doesn't work that way, when it has worked that way since the republic's founding, and when the Supreme Court has held that it does work that way is not an argument. If you have some precedent to bring which you think is more relevant, go ahead.

Re:Grrreat.

[Quixotic Raindrop]

You're missing the most important part of the holding:

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.

The holding depends upon those facts. The holding depends upon the petitioners being members of the military. It is not sufficient to merely meet the conditions listed.

Re:Grrreat.

[neocon]

Umm, hello?

You're posting the same quote I posted, which lays out a very clear set of criteria which it states are `enough' to try someone in military jurisdiction. None of those criteria specify that the suspect must be a member of any military, domestic or foreign.

Please, go read the quote you chose again. If you need, go over it phrase by phrase:

It is enough that petitioners here

i.e. the criteria which follow are themselves sufficient

upon the conceded facts

all of the criteria which follow are met by the defendants, by their own concession

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.

the criteria themselves, all of which the defendants (and Mr. al-Muhajir!) meet

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.

when these criteria are met, military jurisdiction applies.

I understand that you would like it if `upon the conceded facts' meant `outside of and in addition to the conceded facts', but it does not. As if this were not clear enough, the justices' footnotes to the ruling point out a number of past cases as precedent, ranging from the war of 1812 through the Civil War and beyond, of enemy combatants lawfully tried by military tribunals, not all of whom were affiliated with enemy militaries.

Re:Grrreat.

[Quixotic Raindrop]

Grr.

No. Every instance cited in the footnotes involved either a military member or a spy, which is a different animal completely.
As for the first two phrases, you are flat wrong on your interpretation. The facts which followed were sufficient only because of the earlier, undisputed facts, which include that petitioners were members of their countries military.
It is clear that you are incapable of reading simple, basic English. Further posts will be ignored.

Re:Grrreat.

[neocon]

Sorry Raindrop, lots more experienced Constitutional scholars than you, including the judge in the article linked in the story have upheld the plain language interpretation of Quirin, the one you are trying so hard to claim it doesn't say.

If you want us to believe that that sentence means what you say, and not what the judge in this case (and plenty of other judges in the sixty-one years since Quirin) have considered it to say, please point us to any precedent which would back up your claim. No, really -- wishful thinking is not rational argument, and asserting that a phrase means other than its plain meaning doesn't make it so.

Look again at the footnotes -- were any of those trials for espionage (a civil charge), you might have a case. In fact, several of them are trials of saboteurs not explicitly affiliated with an enemy military, just like al-Muhajir.

Re:Grrreat.

[cranos]

Im sorry, not being an American I am a little confused, how come the guy who blew up the Oklahoma building was tried in a civilian court and this guy can't be? I'm really asking here.

Re:Grrreat.

[neocon]

Short answer:

How come some attacks are tried as assault, and others are tried as attempted murder? How come some intrusions are tried as trespass, and others as burglary? Prosecutorial discretion.

Military jurisdiction is a very heavy stick, and it really is used only in cases where it is felt to be very clear that the accused is part of an organized attempt to harm the United States, and not just a loony or small group of loonies who think they are. Even in such cases, the general bias is against applying it -- witness the case of Abdul Hamid (born John Walker Lindh).

Probe he did.

[jotaeleemeese]

Put up or shut up.

About fscking time!!!

[pauldy]

Oh my god are you totally lost there michael. This isn't some candy store robber here this is a real life terrorist. In case you missed it we are at "war" with terror. This makes padilla the equivalent of an enemy combatant and gives the government the right to refuse padilla without any of the rights associated to any american citizen uil the war is declared.

Don't forget this judge already has an axe to grind with Bush to begin with so his motives are a little shacky and I would guess this order like his last with be ignored equally as well.

http://www.cnn.com/2002/LAW/12/04/padilla.ruling /

I really hope you realize michael this isn't your average rebelious individual looking towards social deviance to stand out in a crowd. This man is a real threat to American's lives from coast to coast.

Huh? Re:My Rights Online??

[someone247356]

You stated:
"Welcome to Bush's America: where the oil companies and Jewish lobby decide how free you are allowed to be."

Oil companies I might be willing to give you. After all it should come as no surprise that America is rapidly turning into an oligarchy, the United *Corporate* States of America (sad but all too true), but the Jewish Lobby? Huh?

You might be on firmer, although probably just as erroneous, ground if you had stated the "Fundamentalist Christian Lobby". What does the "Jewish Lobby" have to do with either Bush or unlawful combatants?

Bush seems to be trying very hard to be the next Caesar, or Hitler. The "War on Terrorism", like the "War on Drugs" is just a convenient excuse to grab more power from an increasingly gullible populous. On many issues I believe Mein Furor Bush is wrong.

Naming people you don't like unlawful combatants, and holding them indefinitely without access to the courts is just un-American. In the various cases that people have been tossing around here, the accused actually got his day in court. In the case of French, or German saboteurs, regardless of who or what started it, when the war was over everyone knew. It was my understanding that traditionally, if we are at war, and the enemy gets captured then he is treated as a prisoner of war (POW) under any of the numerous treaties that we have signed. If he is a spy, or an unlawful combatant, then he is denied the rights and protections of a POW and instead is treated like a criminal. For example, if you are a soldier, in uniform, and you kill U.S. soldiers before you are captured, the government can't put you on trial for murder. On the other hand, if you are a saboteur and the bomb you planted kills a U.S. soldier, you can be charged with murder. The fact that you are an "unlawful combatant" means that you loose the protection that a POW status would have given you.

What the Bush administration is trying to do is create a nebulous non-status detainee. You aren't a POW, because then you would have certain rights granted to POW's. You aren't a criminal, because once again you would have certain rights as a criminal defendant in the U.S. court system. All that an "unlawful combatant" is, or used to be, was someone who claimed to be at war, but because of their actions is deemed a criminal not a POW. Padilla is a U.S. citizen that was arrested, and is accused by the government of either plotting to use a dirty bomb, trying to use a dirty bomb, or conspiring with others to use a dirty bomb. When his lawyers at the time filled a motion requiring the government to charge him or release him, they decided to do neither. Instead they claimed he was an unlawful combatant, whisked him off to a military base for *questioning*, and have denied him the ability to stand trial or even consult with an attorney.

This is wrong, period. If they can do it to him, they can do it to you. The government should not, now or ever, have the ability to accuse someone of anything and then detain and/or torture that person indefinitely. The judge rightly said, he has the right to counsel, and so let him consult with said counsel. Since the government is doing its darndest to hinder the process he stated it in what he hoped was a fairly direct, "I mean it, so you better do it" manner. Hence the quote at the top if this article that the submitter found so amusing.

What this has to do with the "Jewish Lobby" is beyond me. Other than the fact most (all?) of Israel's Arab neighbors would like to see Israel wiped off the face of the earth, and that both the 9/11 terrorists and Iraq are Arabs, I don't see how Jewish people fit in?

Perhaps you could elucidate?

Which army?

[falsified]

If Jose Padilla was a member of the Taliban, he wasn't part of an army because the Taliban was not the recognized government of Afghanistan (something like three countries saw them as the legit rulers of the country, and we were not one of them). If he was a member of al-Qaeda, he wasn't part of an army because al-Qaeda isn't even close to being the defense of ANY nation. I can't think of any nation that's proud to have an al-Qaeda cell within its borders.

Anyway, the point is that Jose Padilla never met the qualifications to have his citizenship revoked. If he had joined, say, Iraq's army (not fucking likely), then there could be a case.