Oh, and to link this back to the discussion, the inability of Congress to suspect the Writ except in certain circumstances rather obviously implies there is a Writ in the first place.
(How can someone be a POW if they were tried for war crimes?)
They were captured as POWs, and that was the original justification for holding them. The war ended, and they were detained for war crimes by US soldiers for Germany. They argued they had the right to show up in US courts, the US courts said that, legally, they were being held by the Germans, and, not being Americans or within America's jurisdiction, cannot demand access to the courts.
Second, it can't get much clearer than this: "These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States."
There's still two fairly large difference between those circumstance and the current one:
1) US military bases are, in fact, under US jurisdiction, whereas post-war Germany was under German jurisdiction.
2) We aren't holding the people in Gitmo for anyone else, but at our own choice, and hence we are the correct people to seek release from. Post-war Germany was in the weird post-war state that Iraq is in, where it is a sovereign surrendered nation that cannot provide for it's own security or police force, thanks to them being disbanded, and soldiers from the occuping nations are acting as a police force under the local law. Whereas if we capture a war criminal, in, say, Iraq, we can hold him for the Iraqis and he doesn't get access to our courts, like, um, we just did with Saddam.(I don't think executing him at this point was a good idea, but our behavior, at least, was legal.)
Perhaps the nuance you're missing is the difference between "filing" the writ and being "granted" the writ. Anyone can scribble "this is a writ of habeas corpus" on a piece of paper and have a processor serve it on the Secretary of Defense or whoever. Being granted the writ means you are actually brought before a judge for a determination as to whether or not you are being held appropriately. The detainees in the case cited did not have the right to be brought before a judge. The Supreme Court ruled that lower courts *erred* when they allowed these particular detainees to be brought before them.
That wasn't my point. My point was they had access to the courts enough to that the courts could have ruled in their favor, whereas the people at Gitmo do not.
Not only is there a large different between being filing a writ and being granted it, but there's a large one between filing one and not being able to file one.
The entire thing is fucking absurd. I'm sorry, but the idea that people walk around with insecure machines they have to add something to do close ports is just mind-boggling.
The GC splits people into "combatants" and "non-combatants". "Combatants" are further subdivded into those who qualify for POW status and those who do not. If a combatant fails to qualify for POW status, they are not therefore reclassified as non-combatants, as you seem to suggest. They remain combatants. They can be held as combatants. Or, they can be charged with a crime. Or both.
I don't disagree with a word of that, except that you think the GC has something to with the right of countries to hold non-soldiers. Under the GC, if someone isn't a soldier, and isn't classified as a civilian, you have no 'right' to hold them because you don't need any such right. They are outside the GC and countries can do whatever they want with them, just like they can do whatever they want to random people on the street.
However, US law says otherwise. Under US law, if you are a soldier of an enemy army, you can be detained. And note by 'enemy', we're probably talking about someone that we're actually at War with. If you are not a soldier, you can be detained for some other reason. And that's about it.
Oh, and note: The courts have actually held that detaining a enemy alien is okay, too. However, they have access to the courts to dispute this.
The government has more leeway than I'm admitting in some circumstances to legally detain people, and it might even be legal for them to actually detain, without charge, a terrorist mastermind who they can't charge with anything, but that leeway requires the prisoner have access to the courts to require the government to explain their legal theory, and, of course, it doesn't allow harsh treatment at all. (No detention except detention as punishment for a proven-in-court crime can be, in any way, deliberately harsh.)
Here's what the law says about the writ of habeas corpus, for reference:
That law is either dead letter or meaningless. The legislature does not have the right to alter or restrict the Writ of Habeas Corpus, except that it can suspend it in times of invasion or insurrection.
However, read c1 carefully:'(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or'
Let's lope off that last 'or': 'The writ of habeas corpus shall not extend to a prisoner unless he is in custody under or by color of the authority of the United States'
Which would, um, appears to include anyone detained by the US for the US. (Like I just finished agreeing to the 'Holding for another government' exception in my other post.)
But, incidentally, Gitmo is, indeed, under US jurisdiction. They could claim it's under no jurisdiction, but there's all sorts of weirdly absurd legal problems with that.
And it's clearly not under Cuban jurisdiction, both in the de facto and de jure sense. If I, for example, sneak into Gitmo and stab someone, who arrests me and charges me in court? Even if it's a military court, it appears to be the US government.
They're probably trying to claim it's under US military jurisdiction, but, sadly for them, there is no such thing. There is only one US government, and it only has one jurisdiction Different district courts have different sub-jurisdictions, but that's completely irrelevant to, well, anything but the cases they take, and the Supreme Court obviously doesn't care about that.
And, from what I understand, all US military bases, even ones that are open and cooperate with the host nation, are subject to US law while on the base. If a German civilian wanders onto an American military base and kills someone, it will be the Americans charging him. (Or, more likely, the Americans declining to charge him if the Germans do.)
That is certainly true in Gitmo, though, which is a military base being operated against the wishes of the host country.
Well, congratulations, you found the legal justifications for POWs. POWs, that I might add, another country was trying for war crimes.
There's a rather large difference between US forces operating as part of another country's legal system, and part of ours. They were operating as part of Germany's post-war government, not ours.
It's basically the same way that Saddam Hussein was being held until his execution. He was being held by US forces for Iraq, and he had no right to petition the US for his release.
While that's an interesting, if very very small, exception to my broad statement, it's not very relevant to Gitmo, which is operated by US forces for the US, unless Cuba has suddenly started having us hold prisoners for them. We are holding the prisoners for us and on our authority, which gives them Habeas Corpus.
Oh, and need I point out the inherent paradox of a court decision that said someone didn't have access to the courts? They are least were able to file a Writ of Habeas Corpus, even if the courts eventually said 'We don't have to explain why we are holding you, because we are not holding you, our troups are merely operating Germany and the Germans are having you held.'.
And, hilariously, if you actually read the decision, it will offhandly make mention of several interesting facts, like the fact the US can detain 'enemy aliens' (which are citizens of countries we are legally at war with), and the only rights they have is to a court to determine if they are legally 'enemy aliens'.
In other words, that whole decision rather undermines the point you are trying to make by not only demonstrating that those prisoners of Germany got to file a Writ, regardless of the ultimate outcome, but it mentions repeatedly that while soldiers and enemy aliens can be held without criminal charges and don't have access to the 6th amendment (As I already stated), they do have the right to appear in front of the court and assert the government is incorrect in imprisoning them.
Prisoners in Gitmo haven't even been able to file a Writ to have it rejected.
Although I take issue with 'many'. None of them have had actual "competent tribunals".
Some have been stripped by fiat, some have been stripped in mock trials where the government's lawyers said 'There is some evidence that you, the judge, cannot see' and the defense and accused possibly weren't even there.
That doesn't even reach the bar of 'rubber stamp court' or 'kangaroo court'. Even in the worse legal system in the world, with sham trials, they'll use hearsay evidence, they'll fake evidence, they'll produce documents that assert things and are presented as fact, just like what the US is doing in Gitmo, but at least they'll let the judge have the 'evidence'.
We've managed to invent a whole new level of sham trials.
But, perhaps more to the point, these sham trials aren't even about POW status. At no point is it asserted that the people violated a law of war to the extent it would strip them of their rights. That would be pretty hard, considering how most of them weren't captured on a battlefield and there's no evidence they were even fighting. So even if the 'sham trials' would count, they aren't actually about the GC.
In fact, and I know people look at me oddly when I argue this, this people aren't, legally, POWs, because they aren't, legally, captured under any circumstances the GC would apply, in much the same way someone arrested for murder in Atlanta is not covered under the GC.
We've just decided to pretend they were 'soldiers', and then, hey, look, they weren't wearing a uniform and aren't POWs. It's complete fucking nonsense. While we're at it, why don't we invent a category called 'overaged minors'? We can classify people of any age as minors, and then deny them any protections minors have because, hey, they're overaged.
Actually, he could have detained enemy soldiers on the grounds they were, you know, shooting at people, which is probably illegal. It was the 'insurgents', out of uniform southern sympathizers, who were doing things like blowing up supply lines, that he wanted to detain without a trial.
Secondly, Lincoln actually illegally suspended Habeas Corpus, because Congress wasn't in session, and then they voted to suspend it when they got back. This was, under any constitutional theory, illegal.
But all my arguments about the Great Writ, and despite being a Southern, I can't really find fault with Lincoln's behavior, at least, not with that one. Sometimes emergencies require slightly illegal measures, especially when travel and communications are so slow you can't get legal permission for things.
Note I said 'emergencies'. In Bush's little Permanent War on Terror, it stopped being an emergency at least by October 24, 2001, because at that point Bush had finished ramming the PATRIOT ACT through. If he wanted a certain power he didn't currently legally have, it should have been in there. If he wanted a power the Constitution didn't permit, he should have proposed a constitutional amendment...it's been five damn years by now, we could have passed one if we had wanted him to have more power.
One of the most basic precepts in the law of armed conflict is that states may detain enemy combatants until the cessation of hostilities.
Correct.
In this post I would like to take issue with the suggestion that the United States invented the concept of "unlawful enemy combatants" to avoid providing protections under the Geneva Conventions to al Qaida and Taliban detainees. I frequently hear the charge in Europe and elsewhere that this term has no basis in national or international law, and I fear that this has become conventional wisdom among critics of U.S. policy. In fact, the distinction between lawful and unlawful enemy combatants (also referred to as "unprivileged belligerents") has deep roots in international humanitarian law, preceding even the 1949 Geneva Conventions. The Hague Regulations of 1899 and 1907 contemplated distinctions between lawful and unlawful combatants, and this distinction remains to this day. As Professor Adam Roberts told the Brookings Speakers Forum in March 2002, "There is a long record of certain people coming into the category of unlawful combatants-- pirates, spies, saboteurs, and so on. It has been absurd that there should have been a debate about whether or not that category exists.
Correct, but misleading.
The question isn't, despite that being what the media latched onto. I have no idea if the people captured have Geneva convention rights, although, as I have pointed out elsewhere,
the determination of their status under it was nowhere near the standards for courts set by various international laws, including the GC. (I guess when they wrote 'competent tribunal', they forgot to explicitly say 'competent tribunal as meeting the standards laid out here and in international law'.)
However, I wasn't talking about Geneva legalities. I was talking about US law. Under US law, we can detain people as soldiers, or we can charge them with a crime. That's it. US law's category of 'enemy soldiers' falls entirely under the Geneva convention.
I.e., while the GC says only 'These people are enemy soldiers, and must be treated as soldiers, and these people are outside', there's no indication that, under US law, there is any grounds to hold people that fall outside as enemy soldiers once they've been determined by our own courts to not be enemy soldiers subject to the GC. (They can, of course, be charged with a crime and arrested instead.)
The government just doesn't get to make up reasons to hold people. Capturing soldiers on a battlefield belonging to an enemy army until hostilities is over is right given to governments, and not very restricted under the US constitution or US law until Geneva. Capturing random people, in random places that aren't battlefields, and asserting they are bad people is not a magical new right of the government.
A right almost exactly like that right, however, already exists and it's called arresting people, after which they obviously have to be charged with a crime. The government must specific exactly what behavior they have an objection to and prove beyond a reasonable doubt that it is a violation of some law. The Administration is just calling it something different in an attempt to get around hundreds of years of legal rights.
This, and this alone, is why the Administration is trying to remove Habeas Corpus. The prisoners would show up in court and demand some legal theory under which they were being held. The government would say 'You're enemy soldiers', and the prisoners would quite rightly point out that the US already decided they weren't enemy soldiers. The government would then claim they are terrorists, at which point the court itself would remind the government that criminal claims must be proven via a trial by jury.
And I, again, remind everyone that Habeas Corpus applies to everyone detained by the government, in all circumstances, period, no matter under what legal theory they are detained. There i
We might just have to agree to disagree on this one, but I am absolutely certain that you are wrong on this point, that POWs have all the rights of US citizens in addition to rights from the Geneva Conventions. For instance, the Geneva Conventions expressly allow a POW to be detained without charge or trial for the duration of hostilities.
Actually, the GC requires they be detained without charge or trial.
However, you apparently think 'being charged with a crime' is the only legal reason to detain someone. Being an enemy soldier is a perfectly legal reason to detain someone, American citizen or otherwise. And the rights you're thinking about is probably the 6th amendment, which only requires a jury trial and other such right in criminal detentions, not other ones. Reread it.
However, everyone detained by the government has the right of writ of habeas corpus, which requires the government to present some lawful reason for them being detained.
Honestly, people, how do you think the government detains people that are suicidal? Do you think they've been charged with a crime? (Conspiracy to commit homicide, perhaps?) No, they're detained because they're a danger to themselves or others, and the government has the right to legally detain such people. And such people have a right to a court appearance, which is not a trial, to argue that they should not be detained because they are not actually what the government says they are. Aka, the right of habeas corpus.
Hence, a POW captured by the American military overseas does not have the right to a jury trial, among other things.
If they end up in court, yes, they do have that right. The Geneva convention, however, seriously limits the ability to charge them with anything.
And actually, the right to such a tribunal isn't even guaranteed -- the Geneva Conventions only require such a tribunal "if a doubt arises" as to a detainee's status.
You've managed to be wrong three ways at once.
The Geneva convention requires a tribunal if a doubt arises that they aren't a POW. I.e., the default is they are a POW, and if the government doing the imprisoning disputes this, they can have a tribunal. They can't start the other way and assert there's 'no doubt'. The text is extremely clear on this, so you're either lying or repeating some talking point you've heard before:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [Where POWs classifications are listed], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
They are POWs until they are decided not to be POWs, not the other way around.
Secondly, the Bush administration originally asserted the right to detain them without a 'Combatant Status Review Tribunal', and did so for more than two years. When they finally implemented them, they were to decide if not if someone legally fit under the POW classifications, because if they had started using the Geneva convention rules, they would be clearly in trouble as many of them were not captured with weapons or on a battlefield or in any way that indicated they were, at all, fighting a war. Instead, they made up a category called 'enemy combatant', which is all well and good, but completely unrelated to the Geneva convention, and, thus, doesn't legally 'unPOW' the prisoners at all.
There's absolutely nothing under the Geneva conventions that would suggest that being an 'enemy combatant' means you aren't a POW. There are things under the Geneva convention that would remove you from being a POW, but they all require operating as a soldier without actually being one, which almost none of the captured people were doing.
Thirdly, your entire premise is full of crack. While they may, or may not, have a right to a competent tribunal, they are still people imprisoned by a government with an unsuspended right of Habeas Corpus, and thus are still entitled to an actual court appearance where the government has to explain under what legal theory they are holding that person prisoner.
And the fact they demonstrated that such people are not, legally soldiers, combined with the fact that most people were not, in any fighting, removes the 'imprison soldiers until the war is over' legal reasoning.
I can think of some counterexamples to your statement "Captured soldiers have all rights afforded under the constitution". For instance, they do not have the right to be secure in their papers and effects.
The right to be secure in their papers and effects only applies to free people. Prisoners, whether criminal prisoners or soldiers, don't have it.
They do not have the right to a trial by jury. They certainly don't have to be read their Miranda rights. Most notably, they don't have the right to a speedy and public trial -- POWs can be detained without charge or trial for the duration of hostilities.
6th amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Soldiers are not normally charged with crimes, and thus do not have the rights granted under the 6th amendment. If they are charged, which the Geneva convention prohibits in general, they get all those rights, including a speedy trial by jury and Miranda rights.
They, however, have access to the courts thanks to the Writ of Habeas Corpus, which is applicable to any sort of detention by the government. The government must produce some lawful reason for holding them, be it the fact they are a convicted criminal, a enemy soldier, charged with a crime, mentally incompetent, a material witness to a crime, a legal minor without a guardian, or a danger to themselves or others, which are all the lawful reason to detain people I can think of off the top of my head, although I'm sure there are more.
The rights you listed only apply to people charged with criminal wrongdoing. If you are, for example, a minor without a guardian, you don't get a jury trial, that wouldn't make any sense, but if someone files a Writ of Habeas Corpus, the government has to show up in court and demonstrate that you are, indeed, a minor, and you have no guardian, and that the law supports the detention of you.(1)
Likewise, if the government asserts you are an 'illegal combatant', and someone files a Writ, the government has to show that, a) You are a 'illegal combatant' and b) there is some legal theory under which the government is allowed to hold 'illegal combatants'. Not only have they failed to do 'a' with any of the people in an actual court(2), they haven't ever demonstrated b at all.
And that's not even mentioning the people that their own kangaroo courts decided were not 'combatants' and then, inexplicably, they didn't release.
I.e., they've detained large groups of people because, let's say, they have red hair. Not only do they not put them in front of a real court to decide if they have red hair or not, and not only has their own fake court said some of those people don't have red hair, but, and this is the really important one, at no point have they actually pointed to anywhere in the law where detaining people because they have red hair is legal. Oh, but they call them 'illegal redheads' and 'unlawful redheads', so, I guess, it's magically legal to detain them.
Note when I say 'Someone files a Writ', the courts have held that that includes the prisoner, and he doesn't have to 'file' anything. If he disputes his detainment, he should be treated as having filed a Writ and get his day in court. In fact, the government should treat everyone it imprisons involuntarily as already having filed a Writ.
1) Hypothetical: You are a 15-year old political troublemaker with the support of your parents. Can the government detain you at school 24/7 to keep you from making waves? Not legally, and if they do,
He is mistaken that this applies to non-citizens outside the U.S., however, since they (arguably) do not get any constitutional rights. This is why Gitmo in Cuba is technically O.K. for holding foreigners (but would not be O.K. if located inside the U.S.).
You're right about the rest of it, but you fell for the government's trick. There's three flaws there.
One in that the Great Writ doesn't have anything do with citizens. There's no reference to 'citizens' anywhere in our text, and the common law concept of the 'Writ of Habeas Corpus' that we inherited from the English does not require 'citizenship', which, incidentally, wasn't very well defined back then. The Writ of Habeas Corpus, as part of English common law and restricted from being suspended in the Constitution, applies to everyone.
The second is the idiotic fiction that our military base is mysteriously outside the country. Um, no, military bases are, in fact, legally part of the US.
However, that flaw is rather moot because nothing in the writ has anything to do with the location of the prisoner or even who is holding the prisoner. The point of the Writ is that you don't know where they are, why they're being held, or even if the government is actually holding them, and you're demanding they tell you, in court. That's why it's called the Great Writ, it's the ability to compel the government to produce someone.
If the Chinese are holding a French person in South Africa, by law, you can file a Writ of Habeas Corpus in US courts demanding that the US government produce them in court and produce a lawful reason for holding them. Of course, this obviously won't work as the US government is not, in fact, holding them, and can just say so.
For some reason, you've argued what the government is doing. I never said what the government is currently doing.
What the government is currently doing is, however, flat-out totally illegal, and has been since day one. That's why they're doing it in Cuba, which they claim isn't subject to US law. (Although nothing in the Constitution says anything about any locations at all, instead specifying what the government cannot do, or rights that 'people' in general have.)
Under the actual real laws that we actually have, they cannot legally do what they claim to be able to do, and what they are doing. At all.
Because people apparently weren't paying attention in civic's class, the government has managed to convince them that captured soldiers do not have rights all people imprisoned by the US have. They do, they just have more under the Geneva convention so are unlikely to argue their status.
This is simply incorrect. The only "trial" a POW is entitled to is a military tribunal to determine their POW status.
Well, technically, yes, because if they are determined not to be POWs they are, duh, not POWs, hence POWs get no trial beyond that point. However, the people-who-are-now-not-POWs are then either charged with a crime and, of course, given a trial, or released.
The outcome of such a tribunal is a determination that they *are* or *are not* a POW, but either way, they remain in custody. They can then be held without charge until the cessation of hostilities.
If they are not POWs, they cannot be held without charge.
But where you failed in your logic was somehow assuming that I mentioned 'charges' in there. Being an enemy soldier is not a 'crime', just like being a danger to yourself and others is not a 'crime', or being mentally incompetent is not a 'crime'. It is, however, a lawful justification for imprisonment.
If it is proven in court that you are an enemy soldier, it is justified for the government to continue to hold you. You used habeas corpus, you got into court, the government proved you were an enemy soldier and thus they were lawfully holding you.
If they failed to demonstrate it, they must release you or come up with some other lawful reason to imprison you. (Usually by charging you with some sort of crime, of which soldiers usually commit plenty of, although the Geneva convention forbids us from charging them.)
So if the U.S. were to go to war with China and the military took a million prisoners, each and everyone of those prisoners of war should be entitled to due process?
Yes.
Everyone of them should be provided with attorneys if they cannot afford them?
Yes.
Every prisoner taken should be able to file a petition for illegal detention in the courts (habeas corpus)?
Yes.
Every prisoner should be entitled to a speedy trial?
Yes.
Prisoners of war are not guaranteed due process and never have been as far as I know.
You are somewhat ignorant, then.
Prisoners of war don't want trials. If they don't ask for a trial, they get POW rights, which are pretty good. If they do ask for a trial, they get in front of a court to determine if they should be detained.
Where you are confused is the fact you are apparently not aware that 'This person is an enemy soldier' is a perfectly valid argument to use in court by the government to detain someone. Like all arguments in court, it must be proven, although, like I said, normally the soldier doesn't even dispute it and thus it doesn't end up in court at all.
If the courts say they aren't enemy soldiers, because either they or the government argued they weren't, in court, and won, the government must charge them with some crime or release them. Merely being in uniform or a member of the military is usually enough to be classified as a soldier.
OTOH, if they 'win' and aren't classified as a soldier, the government will usually charge them with spying or murder or something, and they'll have lots and lots of fun in, again, the court system.
Just because the system is set up so that POWs don't want to argue their classification does not mean they are not entitled to due process, and it's due to people like you that the government has managed to invent a class of people without due process rights because you think captured soldiers don't have them because, apparently, you flunked your civics class.
Captured soldiers have all rights afforded under the constitution, and, hell, they have extras under the Geneva convention. Whether or not the Geneva conventions apply to the people we've illegally imprisoned for five years is debatable, but whether or not they have the right to a court is not the least bit debatable.
To restate in a manner that, hopefully, even people who failed civics class can understand:
Every single person (citizen or otherwise) held prisoner (or restrained from leaving by any other name) by United States government (or any agent working on behalf of the US government), regardless of whether this imprisonment is taking place inside or outside the country, has the right to appear in front of a court, hear the reason the government gives for their imprisonment, and dispute it, with the government having to prove their claims are correct and a lawful justification for imprisonment, unless Congress has temporarily suspended habeas corpus under the circumstances they are allowed to do so.
Actually, in some circumstances, what you are talking about is called 'the exception that proves the rule'.
Aka, if a sign says 'Parking between 11 AM and 6 PM', you can conclude that, before 11 and after 6, you are not allowed to park by some other, unmentioned, rule. This is actually such an ingrained concept that people will argue the sign specifically states it, despite there being no words at all on the sign about when you aren't allowed to park.
Likewise, if a sign says 'No right turn on red', you can conclude that not only that there must be other times, like yellow and green, you may turn right, but also that this must be some sort of unique rule and people would normally expect be able to turn right on red. (Because they wouldn't mention it if it was normal.)
Or you can conclude that 'right' is the exception, and that people can normally turn any direction on red, but this intersection is just allowing left turns on red, which shows 'the exception that proves the rule' logic does not actually work all the time.;)
However, all that is rendered moot by a sign that says 'No parking except where and when explicitly allowed', as Ohio appears to have in the law about data collecting.
We have not held up Habeas Corpus as a granite pillar of our society since our nation was founded.
It has, instead, been held up as a granite pillar of our society for about 300 years before our nation was founded. It first showed up in England in 1215, but only applied to nobles, but within 150 years or so was being applied to everyone.
That's not just a fun factoid. American law includes English common law as of the moment of the creation of the US, assuming there have been no specific written law to conflict with common law. Aka, if 'physical injury' is mentioned in a Federal law, and no Federal law has bothered to define 'physical injury' and no US court has ever ruled on it, 'physical injury' is defined as of English law circa 1776. (As is common law in state law in the original 13 colonies, and states that were no independent nations pre-statehood. If they were independent nations, they have that common law instead. With a few weird exceptions.)
The writ of habeas corpus, by being written in the constitution and obviously not modifiable by any law, is still a reference to English common law, and so while the US is only 230 or so years old, the right of Habeas Corpus under US law is much older.
I've been thinking for years, that this country is turning into a police state.
A little late, aren't you? The second Bush asserted the right to lock up anyone, citizen or otherwise, 'enemy combatant' or otherwise, this country became, ipso facto, a police state.
A 'police state' doesn't require 'fascism' or whatever, a police state is simply a country in which the police or military do not have to answer to a court as to why they are holding someone prisoner. Aka, Habeas Corpus.
Bush's administration managed to pretend that POWs don't get trials, just various Geneva rights, and that their prisoners are not entitled to those rights, and the fucks in the media went along with the lie, and we suddenly because a police state. Everyone, being held by the government, legally gets a trial, even POWs, no exceptions whatsoever. (It's just POWs don't want trials, because then they'd stop being protected POWs and start being imprisoned felons.)
Everyone has the right to a trial, or you are in a police state by definition, it's not even arguable. That's what a police state is, a state where the executive arm of the government can imprison people without trials. Everything else is just dressing. It's called a police state because no other part of the government has any power, the judicial because there are no trials, and the legislature because the actual written laws have ceased to be important without actual trials, the 'law' is whatever the executive branch feels like doing.
In this country, only the legislature can disable Habeas Corpus, and then only during times of armed insurrection or actual invasion. Which, incidentally, they have not done.
Right, because it would be real tough to get the users ISP-provided SMTP relay from their Outlook configuration and just spam via. that instead. The spammers would never figure that one out.
Because, of course, ISPs are idiots and won't notice someone spamming through their mail server, and none of them have any sort of rate limiting in place to stop that.
And the ISP can just let spam through their email server for years and year without anyone blacklisting them...
You're not just making sure the bear doesn't eat you, the bear still has to waste time with you.
If we can all waste the bear's time so he chases fifteen people around for a while, and then eats one, instead of going after two and eating all of them, I think blaming us for the one guy is a little silly.
Actually, some of the anti-spammers have a somewhat secret(1) plan they've promised to implement if any government says anyone is legally required allow someone to give them mail, aka, if a spammer sues because they are blocked by someone and the government says 'You must not block this person from putting mail on your servers.'.
The plan is, when this happens: Disable all the DNS blacklists they run, and wait for the internet to melt.
1) The secret isn't the plan, the secret is who's agreed to do it.
The joke is that the 'free speech' bus left years ago.
We don't need to outlaw Unsolicited Commercial Email, or Unsolicited Bulk Email, or do anything to make spam illegal. ALL spam is already illegal, because ALL spam is being sent by illegally hijackjed Windows machines.
Note when I say 'All spam', I actually mean 'All spam still happening on the internet'. There are no 'legitimate' spammers anymore, because they were almost all dropped from the internet five years ago, and the few remaining ones find themselves utterly blocked by everyone in existence. All spam that is actually ending up mailboxes is being sent illegally.
We don't need to fucking argue over what 'rights' people have, taking control of someone else's computer and using it to do anything is a 100% flat-out felony.
Slashdot Mirror
Oh, and to link this back to the discussion, the inability of Congress to suspect the Writ except in certain circumstances rather obviously implies there is a Writ in the first place.
(How can someone be a POW if they were tried for war crimes?)
They were captured as POWs, and that was the original justification for holding them. The war ended, and they were detained for war crimes by US soldiers for Germany. They argued they had the right to show up in US courts, the US courts said that, legally, they were being held by the Germans, and, not being Americans or within America's jurisdiction, cannot demand access to the courts.
Second, it can't get much clearer than this: "These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States."
There's still two fairly large difference between those circumstance and the current one:
1) US military bases are, in fact, under US jurisdiction, whereas post-war Germany was under German jurisdiction.
2) We aren't holding the people in Gitmo for anyone else, but at our own choice, and hence we are the correct people to seek release from. Post-war Germany was in the weird post-war state that Iraq is in, where it is a sovereign surrendered nation that cannot provide for it's own security or police force, thanks to them being disbanded, and soldiers from the occuping nations are acting as a police force under the local law. Whereas if we capture a war criminal, in, say, Iraq, we can hold him for the Iraqis and he doesn't get access to our courts, like, um, we just did with Saddam.(I don't think executing him at this point was a good idea, but our behavior, at least, was legal.)
Perhaps the nuance you're missing is the difference between "filing" the writ and being "granted" the writ. Anyone can scribble "this is a writ of habeas corpus" on a piece of paper and have a processor serve it on the Secretary of Defense or whoever. Being granted the writ means you are actually brought before a judge for a determination as to whether or not you are being held appropriately. The detainees in the case cited did not have the right to be brought before a judge. The Supreme Court ruled that lower courts *erred* when they allowed these particular detainees to be brought before them.
That wasn't my point. My point was they had access to the courts enough to that the courts could have ruled in their favor, whereas the people at Gitmo do not.
Not only is there a large different between being filing a writ and being granted it, but there's a large one between filing one and not being able to file one.
The entire thing is fucking absurd. I'm sorry, but the idea that people walk around with insecure machines they have to add something to do close ports is just mind-boggling.
The GC splits people into "combatants" and "non-combatants". "Combatants" are further subdivded into those who qualify for POW status and those who do not. If a combatant fails to qualify for POW status, they are not therefore reclassified as non-combatants, as you seem to suggest. They remain combatants. They can be held as combatants. Or, they can be charged with a crime. Or both.
I don't disagree with a word of that, except that you think the GC has something to with the right of countries to hold non-soldiers. Under the GC, if someone isn't a soldier, and isn't classified as a civilian, you have no 'right' to hold them because you don't need any such right. They are outside the GC and countries can do whatever they want with them, just like they can do whatever they want to random people on the street.
However, US law says otherwise. Under US law, if you are a soldier of an enemy army, you can be detained. And note by 'enemy', we're probably talking about someone that we're actually at War with. If you are not a soldier, you can be detained for some other reason. And that's about it.
Oh, and note: The courts have actually held that detaining a enemy alien is okay, too. However, they have access to the courts to dispute this.
The government has more leeway than I'm admitting in some circumstances to legally detain people, and it might even be legal for them to actually detain, without charge, a terrorist mastermind who they can't charge with anything, but that leeway requires the prisoner have access to the courts to require the government to explain their legal theory, and, of course, it doesn't allow harsh treatment at all. (No detention except detention as punishment for a proven-in-court crime can be, in any way, deliberately harsh.)
Here's what the law says about the writ of habeas corpus, for reference:
That law is either dead letter or meaningless. The legislature does not have the right to alter or restrict the Writ of Habeas Corpus, except that it can suspend it in times of invasion or insurrection.
However, read c1 carefully:'(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or'
Let's lope off that last 'or': 'The writ of habeas corpus shall not extend to a prisoner unless he is in custody under or by color of the authority of the United States'
Which would, um, appears to include anyone detained by the US for the US. (Like I just finished agreeing to the 'Holding for another government' exception in my other post.)
But, incidentally, Gitmo is, indeed, under US jurisdiction. They could claim it's under no jurisdiction, but there's all sorts of weirdly absurd legal problems with that.
And it's clearly not under Cuban jurisdiction, both in the de facto and de jure sense. If I, for example, sneak into Gitmo and stab someone, who arrests me and charges me in court? Even if it's a military court, it appears to be the US government.
They're probably trying to claim it's under US military jurisdiction, but, sadly for them, there is no such thing. There is only one US government, and it only has one jurisdiction Different district courts have different sub-jurisdictions, but that's completely irrelevant to, well, anything but the cases they take, and the Supreme Court obviously doesn't care about that.
And, from what I understand, all US military bases, even ones that are open and cooperate with the host nation, are subject to US law while on the base. If a German civilian wanders onto an American military base and kills someone, it will be the Americans charging him. (Or, more likely, the Americans declining to charge him if the Germans do.)
That is certainly true in Gitmo, though, which is a military base being operated against the wishes of the host country.
Well, congratulations, you found the legal justifications for POWs. POWs, that I might add, another country was trying for war crimes.
There's a rather large difference between US forces operating as part of another country's legal system, and part of ours. They were operating as part of Germany's post-war government, not ours.
It's basically the same way that Saddam Hussein was being held until his execution. He was being held by US forces for Iraq, and he had no right to petition the US for his release.
While that's an interesting, if very very small, exception to my broad statement, it's not very relevant to Gitmo, which is operated by US forces for the US, unless Cuba has suddenly started having us hold prisoners for them. We are holding the prisoners for us and on our authority, which gives them Habeas Corpus.
Oh, and need I point out the inherent paradox of a court decision that said someone didn't have access to the courts? They are least were able to file a Writ of Habeas Corpus, even if the courts eventually said 'We don't have to explain why we are holding you, because we are not holding you, our troups are merely operating Germany and the Germans are having you held.'.
And, hilariously, if you actually read the decision, it will offhandly make mention of several interesting facts, like the fact the US can detain 'enemy aliens' (which are citizens of countries we are legally at war with), and the only rights they have is to a court to determine if they are legally 'enemy aliens'.
In other words, that whole decision rather undermines the point you are trying to make by not only demonstrating that those prisoners of Germany got to file a Writ, regardless of the ultimate outcome, but it mentions repeatedly that while soldiers and enemy aliens can be held without criminal charges and don't have access to the 6th amendment (As I already stated), they do have the right to appear in front of the court and assert the government is incorrect in imprisoning them.
Prisoners in Gitmo haven't even been able to file a Writ to have it rejected.
Damn, you wrote that much clearer than I did.
Although I take issue with 'many'. None of them have had actual "competent tribunals".
Some have been stripped by fiat, some have been stripped in mock trials where the government's lawyers said 'There is some evidence that you, the judge, cannot see' and the defense and accused possibly weren't even there.
That doesn't even reach the bar of 'rubber stamp court' or 'kangaroo court'. Even in the worse legal system in the world, with sham trials, they'll use hearsay evidence, they'll fake evidence, they'll produce documents that assert things and are presented as fact, just like what the US is doing in Gitmo, but at least they'll let the judge have the 'evidence'.
We've managed to invent a whole new level of sham trials.
But, perhaps more to the point, these sham trials aren't even about POW status. At no point is it asserted that the people violated a law of war to the extent it would strip them of their rights. That would be pretty hard, considering how most of them weren't captured on a battlefield and there's no evidence they were even fighting. So even if the 'sham trials' would count, they aren't actually about the GC.
In fact, and I know people look at me oddly when I argue this, this people aren't, legally, POWs, because they aren't, legally, captured under any circumstances the GC would apply, in much the same way someone arrested for murder in Atlanta is not covered under the GC.
We've just decided to pretend they were 'soldiers', and then, hey, look, they weren't wearing a uniform and aren't POWs. It's complete fucking nonsense. While we're at it, why don't we invent a category called 'overaged minors'? We can classify people of any age as minors, and then deny them any protections minors have because, hey, they're overaged.
Oh, and WRT to Lincoln:
Actually, he could have detained enemy soldiers on the grounds they were, you know, shooting at people, which is probably illegal. It was the 'insurgents', out of uniform southern sympathizers, who were doing things like blowing up supply lines, that he wanted to detain without a trial.
Secondly, Lincoln actually illegally suspended Habeas Corpus, because Congress wasn't in session, and then they voted to suspend it when they got back. This was, under any constitutional theory, illegal.
But all my arguments about the Great Writ, and despite being a Southern, I can't really find fault with Lincoln's behavior, at least, not with that one. Sometimes emergencies require slightly illegal measures, especially when travel and communications are so slow you can't get legal permission for things.
Note I said 'emergencies'. In Bush's little Permanent War on Terror, it stopped being an emergency at least by October 24, 2001, because at that point Bush had finished ramming the PATRIOT ACT through. If he wanted a certain power he didn't currently legally have, it should have been in there. If he wanted a power the Constitution didn't permit, he should have proposed a constitutional amendment...it's been five damn years by now, we could have passed one if we had wanted him to have more power.
One of the most basic precepts in the law of armed conflict is that states may detain enemy combatants until the cessation of hostilities.
Correct.
In this post I would like to take issue with the suggestion that the United States invented the concept of "unlawful enemy combatants" to avoid providing protections under the Geneva Conventions to al Qaida and Taliban detainees. I frequently hear the charge in Europe and elsewhere that this term has no basis in national or international law, and I fear that this has become conventional wisdom among critics of U.S. policy. In fact, the distinction between lawful and unlawful enemy combatants (also referred to as "unprivileged belligerents") has deep roots in international humanitarian law, preceding even the 1949 Geneva Conventions. The Hague Regulations of 1899 and 1907 contemplated distinctions between lawful and unlawful combatants, and this distinction remains to this day. As Professor Adam Roberts told the Brookings Speakers Forum in March 2002, "There is a long record of certain people coming into the category of unlawful combatants-- pirates, spies, saboteurs, and so on. It has been absurd that there should have been a debate about whether or not that category exists.
Correct, but misleading.
The question isn't, despite that being what the media latched onto. I have no idea if the people captured have Geneva convention rights, although, as I have pointed out elsewhere, the determination of their status under it was nowhere near the standards for courts set by various international laws, including the GC. (I guess when they wrote 'competent tribunal', they forgot to explicitly say 'competent tribunal as meeting the standards laid out here and in international law'.)
However, I wasn't talking about Geneva legalities. I was talking about US law. Under US law, we can detain people as soldiers, or we can charge them with a crime. That's it. US law's category of 'enemy soldiers' falls entirely under the Geneva convention.
I.e., while the GC says only 'These people are enemy soldiers, and must be treated as soldiers, and these people are outside', there's no indication that, under US law, there is any grounds to hold people that fall outside as enemy soldiers once they've been determined by our own courts to not be enemy soldiers subject to the GC. (They can, of course, be charged with a crime and arrested instead.)
The government just doesn't get to make up reasons to hold people. Capturing soldiers on a battlefield belonging to an enemy army until hostilities is over is right given to governments, and not very restricted under the US constitution or US law until Geneva. Capturing random people, in random places that aren't battlefields, and asserting they are bad people is not a magical new right of the government.
A right almost exactly like that right, however, already exists and it's called arresting people, after which they obviously have to be charged with a crime. The government must specific exactly what behavior they have an objection to and prove beyond a reasonable doubt that it is a violation of some law. The Administration is just calling it something different in an attempt to get around hundreds of years of legal rights.
This, and this alone, is why the Administration is trying to remove Habeas Corpus. The prisoners would show up in court and demand some legal theory under which they were being held. The government would say 'You're enemy soldiers', and the prisoners would quite rightly point out that the US already decided they weren't enemy soldiers. The government would then claim they are terrorists, at which point the court itself would remind the government that criminal claims must be proven via a trial by jury.
And I, again, remind everyone that Habeas Corpus applies to everyone detained by the government, in all circumstances, period, no matter under what legal theory they are detained. There i
We might just have to agree to disagree on this one, but I am absolutely certain that you are wrong on this point, that POWs have all the rights of US citizens in addition to rights from the Geneva Conventions. For instance, the Geneva Conventions expressly allow a POW to be detained without charge or trial for the duration of hostilities.
Actually, the GC requires they be detained without charge or trial.
However, you apparently think 'being charged with a crime' is the only legal reason to detain someone. Being an enemy soldier is a perfectly legal reason to detain someone, American citizen or otherwise. And the rights you're thinking about is probably the 6th amendment, which only requires a jury trial and other such right in criminal detentions, not other ones. Reread it.
However, everyone detained by the government has the right of writ of habeas corpus, which requires the government to present some lawful reason for them being detained.
Honestly, people, how do you think the government detains people that are suicidal? Do you think they've been charged with a crime? (Conspiracy to commit homicide, perhaps?) No, they're detained because they're a danger to themselves or others, and the government has the right to legally detain such people. And such people have a right to a court appearance, which is not a trial, to argue that they should not be detained because they are not actually what the government says they are. Aka, the right of habeas corpus.
Hence, a POW captured by the American military overseas does not have the right to a jury trial, among other things.
If they end up in court, yes, they do have that right. The Geneva convention, however, seriously limits the ability to charge them with anything.
You mean the bill passed four years after all this started?
And actually, the right to such a tribunal isn't even guaranteed -- the Geneva Conventions only require such a tribunal "if a doubt arises" as to a detainee's status.
You've managed to be wrong three ways at once.
The Geneva convention requires a tribunal if a doubt arises that they aren't a POW. I.e., the default is they are a POW, and if the government doing the imprisoning disputes this, they can have a tribunal. They can't start the other way and assert there's 'no doubt'. The text is extremely clear on this, so you're either lying or repeating some talking point you've heard before:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [Where POWs classifications are listed], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
They are POWs until they are decided not to be POWs, not the other way around.
Secondly, the Bush administration originally asserted the right to detain them without a 'Combatant Status Review Tribunal', and did so for more than two years. When they finally implemented them, they were to decide if not if someone legally fit under the POW classifications, because if they had started using the Geneva convention rules, they would be clearly in trouble as many of them were not captured with weapons or on a battlefield or in any way that indicated they were, at all, fighting a war. Instead, they made up a category called 'enemy combatant', which is all well and good, but completely unrelated to the Geneva convention, and, thus, doesn't legally 'unPOW' the prisoners at all.
There's absolutely nothing under the Geneva conventions that would suggest that being an 'enemy combatant' means you aren't a POW. There are things under the Geneva convention that would remove you from being a POW, but they all require operating as a soldier without actually being one, which almost none of the captured people were doing.
Thirdly, your entire premise is full of crack. While they may, or may not, have a right to a competent tribunal, they are still people imprisoned by a government with an unsuspended right of Habeas Corpus, and thus are still entitled to an actual court appearance where the government has to explain under what legal theory they are holding that person prisoner.
And the fact they demonstrated that such people are not, legally soldiers, combined with the fact that most people were not, in any fighting, removes the 'imprison soldiers until the war is over' legal reasoning.
I can think of some counterexamples to your statement "Captured soldiers have all rights afforded under the constitution". For instance, they do not have the right to be secure in their papers and effects.
The right to be secure in their papers and effects only applies to free people. Prisoners, whether criminal prisoners or soldiers, don't have it.
They do not have the right to a trial by jury. They certainly don't have to be read their Miranda rights. Most notably, they don't have the right to a speedy and public trial -- POWs can be detained without charge or trial for the duration of hostilities.
6th amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Soldiers are not normally charged with crimes, and thus do not have the rights granted under the 6th amendment. If they are charged, which the Geneva convention prohibits in general, they get all those rights, including a speedy trial by jury and Miranda rights.
They, however, have access to the courts thanks to the Writ of Habeas Corpus, which is applicable to any sort of detention by the government. The government must produce some lawful reason for holding them, be it the fact they are a convicted criminal, a enemy soldier, charged with a crime, mentally incompetent, a material witness to a crime, a legal minor without a guardian, or a danger to themselves or others, which are all the lawful reason to detain people I can think of off the top of my head, although I'm sure there are more.
The rights you listed only apply to people charged with criminal wrongdoing. If you are, for example, a minor without a guardian, you don't get a jury trial, that wouldn't make any sense, but if someone files a Writ of Habeas Corpus, the government has to show up in court and demonstrate that you are, indeed, a minor, and you have no guardian, and that the law supports the detention of you.(1)
Likewise, if the government asserts you are an 'illegal combatant', and someone files a Writ, the government has to show that, a) You are a 'illegal combatant' and b) there is some legal theory under which the government is allowed to hold 'illegal combatants'. Not only have they failed to do 'a' with any of the people in an actual court(2), they haven't ever demonstrated b at all.
And that's not even mentioning the people that their own kangaroo courts decided were not 'combatants' and then, inexplicably, they didn't release.
I.e., they've detained large groups of people because, let's say, they have red hair. Not only do they not put them in front of a real court to decide if they have red hair or not, and not only has their own fake court said some of those people don't have red hair, but, and this is the really important one, at no point have they actually pointed to anywhere in the law where detaining people because they have red hair is legal. Oh, but they call them 'illegal redheads' and 'unlawful redheads', so, I guess, it's magically legal to detain them.
Note when I say 'Someone files a Writ', the courts have held that that includes the prisoner, and he doesn't have to 'file' anything. If he disputes his detainment, he should be treated as having filed a Writ and get his day in court. In fact, the government should treat everyone it imprisons involuntarily as already having filed a Writ.
1) Hypothetical: You are a 15-year old political troublemaker with the support of your parents. Can the government detain you at school 24/7 to keep you from making waves? Not legally, and if they do,
He is mistaken that this applies to non-citizens outside the U.S., however, since they (arguably) do not get any constitutional rights. This is why Gitmo in Cuba is technically O.K. for holding foreigners (but would not be O.K. if located inside the U.S.).
You're right about the rest of it, but you fell for the government's trick. There's three flaws there.
One in that the Great Writ doesn't have anything do with citizens. There's no reference to 'citizens' anywhere in our text, and the common law concept of the 'Writ of Habeas Corpus' that we inherited from the English does not require 'citizenship', which, incidentally, wasn't very well defined back then. The Writ of Habeas Corpus, as part of English common law and restricted from being suspended in the Constitution, applies to everyone.
The second is the idiotic fiction that our military base is mysteriously outside the country. Um, no, military bases are, in fact, legally part of the US.
However, that flaw is rather moot because nothing in the writ has anything to do with the location of the prisoner or even who is holding the prisoner. The point of the Writ is that you don't know where they are, why they're being held, or even if the government is actually holding them, and you're demanding they tell you, in court. That's why it's called the Great Writ, it's the ability to compel the government to produce someone.
If the Chinese are holding a French person in South Africa, by law, you can file a Writ of Habeas Corpus in US courts demanding that the US government produce them in court and produce a lawful reason for holding them. Of course, this obviously won't work as the US government is not, in fact, holding them, and can just say so.
For some reason, you've argued what the government is doing. I never said what the government is currently doing.
What the government is currently doing is, however, flat-out totally illegal, and has been since day one. That's why they're doing it in Cuba, which they claim isn't subject to US law. (Although nothing in the Constitution says anything about any locations at all, instead specifying what the government cannot do, or rights that 'people' in general have.)
Under the actual real laws that we actually have, they cannot legally do what they claim to be able to do, and what they are doing. At all.
Because people apparently weren't paying attention in civic's class, the government has managed to convince them that captured soldiers do not have rights all people imprisoned by the US have. They do, they just have more under the Geneva convention so are unlikely to argue their status.
This is simply incorrect. The only "trial" a POW is entitled to is a military tribunal to determine their POW status.
Well, technically, yes, because if they are determined not to be POWs they are, duh, not POWs, hence POWs get no trial beyond that point. However, the people-who-are-now-not-POWs are then either charged with a crime and, of course, given a trial, or released.
The outcome of such a tribunal is a determination that they *are* or *are not* a POW, but either way, they remain in custody. They can then be held without charge until the cessation of hostilities.
If they are not POWs, they cannot be held without charge.
But where you failed in your logic was somehow assuming that I mentioned 'charges' in there. Being an enemy soldier is not a 'crime', just like being a danger to yourself and others is not a 'crime', or being mentally incompetent is not a 'crime'. It is, however, a lawful justification for imprisonment.
If it is proven in court that you are an enemy soldier, it is justified for the government to continue to hold you. You used habeas corpus, you got into court, the government proved you were an enemy soldier and thus they were lawfully holding you.
If they failed to demonstrate it, they must release you or come up with some other lawful reason to imprison you. (Usually by charging you with some sort of crime, of which soldiers usually commit plenty of, although the Geneva convention forbids us from charging them.)
So if the U.S. were to go to war with China and the military took a million prisoners, each and everyone of those prisoners of war should be entitled to due process?
Yes.
Everyone of them should be provided with attorneys if they cannot afford them?
Yes.
Every prisoner taken should be able to file a petition for illegal detention in the courts (habeas corpus)?
Yes.
Every prisoner should be entitled to a speedy trial?
Yes.
Prisoners of war are not guaranteed due process and never have been as far as I know.
You are somewhat ignorant, then.
Prisoners of war don't want trials. If they don't ask for a trial, they get POW rights, which are pretty good. If they do ask for a trial, they get in front of a court to determine if they should be detained.
Where you are confused is the fact you are apparently not aware that 'This person is an enemy soldier' is a perfectly valid argument to use in court by the government to detain someone. Like all arguments in court, it must be proven, although, like I said, normally the soldier doesn't even dispute it and thus it doesn't end up in court at all.
If the courts say they aren't enemy soldiers, because either they or the government argued they weren't, in court, and won, the government must charge them with some crime or release them. Merely being in uniform or a member of the military is usually enough to be classified as a soldier.
OTOH, if they 'win' and aren't classified as a soldier, the government will usually charge them with spying or murder or something, and they'll have lots and lots of fun in, again, the court system.
Just because the system is set up so that POWs don't want to argue their classification does not mean they are not entitled to due process, and it's due to people like you that the government has managed to invent a class of people without due process rights because you think captured soldiers don't have them because, apparently, you flunked your civics class.
Captured soldiers have all rights afforded under the constitution, and, hell, they have extras under the Geneva convention. Whether or not the Geneva conventions apply to the people we've illegally imprisoned for five years is debatable, but whether or not they have the right to a court is not the least bit debatable.
To restate in a manner that, hopefully, even people who failed civics class can understand:
Every single person (citizen or otherwise) held prisoner (or restrained from leaving by any other name) by United States government (or any agent working on behalf of the US government), regardless of whether this imprisonment is taking place inside or outside the country, has the right to appear in front of a court, hear the reason the government gives for their imprisonment, and dispute it, with the government having to prove their claims are correct and a lawful justification for imprisonment, unless Congress has temporarily suspended habeas corpus under the circumstances they are allowed to do so.
If children are banned from having sex, then only people who have sex will have children.
Wait, I got turned around somewhere in there.
Actually, in some circumstances, what you are talking about is called 'the exception that proves the rule'.
Aka, if a sign says 'Parking between 11 AM and 6 PM', you can conclude that, before 11 and after 6, you are not allowed to park by some other, unmentioned, rule. This is actually such an ingrained concept that people will argue the sign specifically states it, despite there being no words at all on the sign about when you aren't allowed to park.
Likewise, if a sign says 'No right turn on red', you can conclude that not only that there must be other times, like yellow and green, you may turn right, but also that this must be some sort of unique rule and people would normally expect be able to turn right on red. (Because they wouldn't mention it if it was normal.)
Or you can conclude that 'right' is the exception, and that people can normally turn any direction on red, but this intersection is just allowing left turns on red, which shows 'the exception that proves the rule' logic does not actually work all the time. ;)
However, all that is rendered moot by a sign that says 'No parking except where and when explicitly allowed', as Ohio appears to have in the law about data collecting.
We have not held up Habeas Corpus as a granite pillar of our society since our nation was founded.
It has, instead, been held up as a granite pillar of our society for about 300 years before our nation was founded. It first showed up in England in 1215, but only applied to nobles, but within 150 years or so was being applied to everyone.
That's not just a fun factoid. American law includes English common law as of the moment of the creation of the US, assuming there have been no specific written law to conflict with common law. Aka, if 'physical injury' is mentioned in a Federal law, and no Federal law has bothered to define 'physical injury' and no US court has ever ruled on it, 'physical injury' is defined as of English law circa 1776. (As is common law in state law in the original 13 colonies, and states that were no independent nations pre-statehood. If they were independent nations, they have that common law instead. With a few weird exceptions.)
The writ of habeas corpus, by being written in the constitution and obviously not modifiable by any law, is still a reference to English common law, and so while the US is only 230 or so years old, the right of Habeas Corpus under US law is much older.
I've been thinking for years, that this country is turning into a police state.
A little late, aren't you? The second Bush asserted the right to lock up anyone, citizen or otherwise, 'enemy combatant' or otherwise, this country became, ipso facto, a police state.
A 'police state' doesn't require 'fascism' or whatever, a police state is simply a country in which the police or military do not have to answer to a court as to why they are holding someone prisoner. Aka, Habeas Corpus.
Bush's administration managed to pretend that POWs don't get trials, just various Geneva rights, and that their prisoners are not entitled to those rights, and the fucks in the media went along with the lie, and we suddenly because a police state. Everyone, being held by the government, legally gets a trial, even POWs, no exceptions whatsoever. (It's just POWs don't want trials, because then they'd stop being protected POWs and start being imprisoned felons.)
Everyone has the right to a trial, or you are in a police state by definition, it's not even arguable. That's what a police state is, a state where the executive arm of the government can imprison people without trials. Everything else is just dressing. It's called a police state because no other part of the government has any power, the judicial because there are no trials, and the legislature because the actual written laws have ceased to be important without actual trials, the 'law' is whatever the executive branch feels like doing.
In this country, only the legislature can disable Habeas Corpus, and then only during times of armed insurrection or actual invasion. Which, incidentally, they have not done.
That's pretty much everyone's reaction to that article. I read it six months ago and that's what I immediately thought of. ;)
My next step: Get every domain using the same three MX records, and change the middle one, the actual mail server, IP address every month or so.
Right, because it would be real tough to get the users ISP-provided SMTP relay from their Outlook configuration and just spam via. that instead. The spammers would never figure that one out.
Because, of course, ISPs are idiots and won't notice someone spamming through their mail server, and none of them have any sort of rate limiting in place to stop that.
And the ISP can just let spam through their email server for years and year without anyone blacklisting them...
You're not just making sure the bear doesn't eat you, the bear still has to waste time with you.
If we can all waste the bear's time so he chases fifteen people around for a while, and then eats one, instead of going after two and eating all of them, I think blaming us for the one guy is a little silly.
Actually, some of the anti-spammers have a somewhat secret(1) plan they've promised to implement if any government says anyone is legally required allow someone to give them mail, aka, if a spammer sues because they are blocked by someone and the government says 'You must not block this person from putting mail on your servers.'.
The plan is, when this happens: Disable all the DNS blacklists they run, and wait for the internet to melt.
1) The secret isn't the plan, the secret is who's agreed to do it.
The joke is that the 'free speech' bus left years ago.
We don't need to outlaw Unsolicited Commercial Email, or Unsolicited Bulk Email, or do anything to make spam illegal. ALL spam is already illegal, because ALL spam is being sent by illegally hijackjed Windows machines.
Note when I say 'All spam', I actually mean 'All spam still happening on the internet'. There are no 'legitimate' spammers anymore, because they were almost all dropped from the internet five years ago, and the few remaining ones find themselves utterly blocked by everyone in existence. All spam that is actually ending up mailboxes is being sent illegally.
We don't need to fucking argue over what 'rights' people have, taking control of someone else's computer and using it to do anything is a 100% flat-out felony.