``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.
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.
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.
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?
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.
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':-) ).
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.
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?
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?
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?
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).
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.
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...
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
Slashdot Mirror
``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.
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.
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.
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?
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' :-) ).
Incidentally, Quirin explicitly found that:
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.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...
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:
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?
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?
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).
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.
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?
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:
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...
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.
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.
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.
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.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).
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.
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.
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:
i.e. the criteria which follow are themselves sufficient all of the criteria which follow are met by the defendants, by their own concession the criteria themselves, all of which the defendants (and Mr. al-Muhajir!) meet 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.
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.
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:
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.
Look again at that quote:
(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:
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.That's not actually correct.
Go read Quirin, which I linked above. In particular, the Supreme Court ruled: