A piece from NewsDay, which among other details, confirms that Mr. al-Muhajir had legal representation in New York, and adds that a legal hearing is being held today to confirm his status. This article also suggests that Mr. Muhajir was initially detained on a material witness warrant.
A piece from the Baltimore Sun suggests that the government is rethinking use of military law in this case, and discusses some of the precedents in either direction.
A piece from USA Today suggests that al-Muhajir's lawyers are almost certainly proceeding with a habeaa corpus petition, and points out that regardless of venue, no one is suggesting that he does not have a right to do so. It is also pointed out that the primary ramification of a ruling that Mr. Muhajir is an enemy combatant would not be a new venue of trial per se, but permission to hold him until the end of hostilities.
I'm still looking for more definitive word on the legal maneuvers already pursued and still open in the case. None of this is new precedent -- as mentioned earlier in this thread, many of the details were hashed out during the Second World War, when a group of German spies, including a handful of US citizens was infiltrated from submarine into the continental US with plans to wreak havoc by bombing Jewish-owned stores and other civilian targets.
And if we lived in a state calling itself a pure democracy, your argument would be on target. We don't, for the simple reason that pure democracy is very subject to abuse by regional cliques and other anomalies which are much more anti-democratic in effect than the compromises built into the current system.
The Washington post article covers the fact that he had a lawyer in New York, and that he had originally been one of a number of people held on lesser charge before being transferred. The cable news networks have had pretty good discussion of all of this stuff -- I'll try to dig up some transcripts, as they come online.
But if the State defies the constitution, then what do you do? Just about everything our Central State does violates the 10th amendment. The Constitution spells out pretty much the Central State's legit activities, but it is way out of bounds _on everything_. Just pick a topic, any topic.
Here we're mostly in agreement -- this fact was at the core of the `Republican revolution' of the mid-nineties. There are many groups, such as the Institute for Justice and the Mountain States Legal Foundation fighting the good fight in this area, though.
And just to present one coherent argument, the so-called war on terrorism is unconstitutional. The constitution sets out the process for engaging in war. Congress has not declared war. Bush is letting the military dogs out, with the Congress's approval (but not declaration of war). That's plainly unconstitutional.
This is simply incorrect. It is, of course, true that we are not in a declared war, but even outside the scope of such a conflict, the Constitution gives the President
far-reaching authority to use military force, and even more recent legislation demanding approval from congress for extended use of military force has been followed scrupulously in this case. Almost since the birth of this nation, Presidents have used this authority to defend the nation and its interests -- witness Jefferson's actions against the Barbary pirates, another undeclared war against another terroristic non-state actor.
However, our government sets the limits on what it can do--it is its own authority. In other words, it really sets no limits for itself. For those of you who remember, recall the congressional efforts to self-impose spending limits. They just cannot and will not. There are no limits to what our government will do, given that it can flummox the mindless government-educated masses.
We're not discussing house rules and procedures, though even there I'm not sure how `not passing a law' equates to `not following a law' in your book. We're talking about the Constitution, which by definition defines the limits even of law.
Any law which purports to violate the constitution is simply a nullity, and contrary to your vague implications, this has held up very well over the centuries.
So, if you would like to present a coherent argument for considering Bush and Ashcroft to be anti-constitution, present it. Innuendo is not argument.
It says nothing about that, because it isn't a particularly interesting issue. All they did was give each state the same number of electors as they have congressmen. Anything else would have required redoing the painful compromise worked out for congressional representation. They didn't really care about opening that can of worms, because they thought elections would usually end up in the house (there's an extra stipulation that there will be only 1 vote per state in House elections).
I don't think that that really disagrees with what I wrote at all. You are quite correct that the large-state issue, and the corresponding compromise emerged first in the discussions of legislative representation. I don't think that this makes the decision to use the same solution which was reached in that case for the electoral process a light or haphazzard decision.
I'm curious if you would provide a source for the statement that the Founders expected most presidential elections to end up in the house -- this is certainly not the impression I had, or something I have seen claimed elsewhere.
My problem with your posts is that you seem to think the system is working now according to its original design, and thus the conceptions of the designers in this matter are important.
I don't think that anyone is claiming this. What I feel is noteworthy is that the system as it exists today is one that was provided for by the law as written and as ammended in the centuries since written.
In other words, I don't see the evolutions which have occurred within the parameters set by the Constitution as reflecting poorly on the original -- indeed the power of the constitution to evolve through ammendment has allowed it to last longer than any other written constitution in the history of the planet, and reflects very well on the wisdom of its authors.
I do have a problem, however, with legislators and judges who would attempt to short-circuit this evolution by creative re-interpretation of words and phrases which have plain meanings.
Thank you. Do you have a source where I can read up on it, since the US media can't be bothered to keep us informed?
The
Washington Post and others have had coverage of this over the last day and a half.
I certainly agree that a SCOTUS review of the current case would be reasonable, and expect that we may well see one -- remember that while Mr. al-Mujahir and his lawyer have not yet contested his case being transferred to military jurisdiction (and chose not to at the time), they may well do so in the days ahead. It is still quite early in this case.
With due respect, I suggest you read more about Mr. al-Mujahir's case. In particular, Mr. al-Mujahir did retain a lawyer while in custody in New York, and waived his opportunity to contest being transferred to military jurisdiction. He still may well contest this transfer at a later date.
As for the constitutional precedent for trying US citizens entering the US as part of an act of war by a foreign power in military jurisdiction, this goes back to the earliest days of our Republic, with case-law precedents in the early nineteenth century, the Civil War, and
the Second World War.
In short, as Bush has clearly stated, we are at war with the specific terrorist network which attacked us on September 11, and such groups or nations as may align with them to plan specific and credible future attacks.
I agree 100% that the pussy-footing around the issue of the specific identity of those who attacked us, and the use of the term `war on terror' instead of `war on a particular totalitarian and murderous offshoot of Islam which has chosen to declare war on us' in the interest of not offending anyone is... unhelpful.
While I disagree with your characterization of the Founders intentions (and I would argue that reading what they actually said and wrote on the matter backs up my view), this is irrelevant to the current discussion.
Even if we agree that this is why an electoral college was instituted, this only explains the indirect-election aspect of such an institution. It tells us nothing about why the Founders chose to make representation in such an institution not strictly proportional -- and, as I said, the reason for this was quite explicitly to address the large-state problem. At any rate, the indirect-election aspect of the EC no longer exists in practice.
I'm a little more concerned about your last sentence though.
Certainly, it is the case that the Constitution has evolved, through the mechanism of adoption of Constitutional Ammendments, which was specifically provided for by the founders. But this evolution neither serves as an indictment of the original document (which, after all, is what made such Ammendments possible), nor justifies the attempts by some to change the clear meaning of the Constitution without ammending it, such as in the lacking enforcement of the second, ninth, and tenth ammendments.
Care to point out where in the constitution that is said?
By all means. See
Article 2 of the US Constitution:
Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or
Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.
Note that `in such manner as the Legislature thereof may direct'. In no way does it say `in such manner as the Supreme Court thereof may direct, if they don't like the results of the first count'. This is a federal duty of the state legislature, and is subject to federal, not state judicial review.
Pretty clear, really.
As for the rest of your post, I agree 100% that the precedent is crucial here. Can you imagine the results if we set the precedent that if a party (the Democrats in this case, but it could be either) could overturn the results of an election by going to the state courts of each state they think they have influence in?
While I disagree with your characterization of the reasons for the electoral college, this is an irrelevancy at any rate -- independence of electors has not existed in fact for almost a century. (I would suggest you look into the discussions of the matter in the Federalist Papers, if you want to see what the Founders themselves said on the matter, though).
As for the small states argument, it's a simple matter of fact that were voting strictly proportionate, a small number of coastal states would have a massively disproportionate role in presidential elections, while small states would likely never be visited at all.
With due respect, I suggest you read more about Mr. al-Mujahir's case before you start drawing wild conclusions.
In particular, Mr. al-Mujahir had a lawyer while he was being held in New York, and waived the opportunity to contest being transferred to military jurisdiction. He is more than welcome to contest this transfer if a later date if he wishes to. Likewise, your claim that this case was kept secret is simply false. It is certainly true that the media became more interested in Mr. al-Mujahir's case when the larger charges of attempting to explode a dirty nuclear device in the US were added to his case, but his detention was a matter of public record at all times.
As for Mr. al-Mujahir being subject to military jurisdiction, the precedent for trying US citizens caught entering the nation as an act of war on behalf of a foreign power dates back to the earliest days of this nations' history, with cases in the early nineteenth century, the Civil war, and
the Second World War.
he Bill of Rights didn't stop Bush STEALING the presidency in full view of the world's media did it?
Care to back up that claim? AFAICT, the US Constitution did a very good job of preventing Al Gore from stealing the election.
Remember that presidential elections are a federal matter, and outside the jurisdiction of state courts. When SCOFLA ruled otherwise, the SCOTUS had no choice but to step in, to uphold the seperation of powers called for by the constitution.
Except that the USA PATRIOT act does nothing which is on the scale of this bill at all. In particular, it does nothing to remove the need for judicial review of such surveillance, as required by the US Constitution.
What it does do is extend the same practices which were already ruled constitutional when JFK and RFK instituted them against organized crime to organized terrorist groups.
Which is well and good -- there are several ammendments (II, IX, X come immediately to mind) which are not enforced as they should be, and if you're arguing for a return to a strict constructionist reading of the constitution, we're 100% in agreement.
But this doesn't make the claims in the responded-to post any less absurd. The fact remains that our government does operate within the rule of law and constitutional limitations, and to refer to it as an `authoritarian regime' is the utmost in silliness.
Elected? Thats a good one! I seem to remember the supreme court appointing him....
With due respect, care to back up that claim?
What you call the Supreme Court `appointing' someone was simply the Supreme court confirming what is clearly written in the Constitution -- that a state judiciary (SCOFLA in this case) may not step in and overturn the results of a federal election.
This is spot on. The only thing I would add is that this makes more clear than ever the need for a system which places hard and fast limits on what even an elected government can do.
The US has the Bill of Rights. The UK does not. People often fail to recognize what a huge difference this is.
Sure looks to me like the `Even if' in your sentence suggests that the Right would not be opposed to this were it not for financial concerns. Perhaps you meant something else, and just phrased it poorly?
I understand you meant this ironically, but quite seriously: can you provide any cite to something on this scale happening in the US at all?
I know it's very fashionable to say `US bad, Europe good', but the fact remains that England has impositions on the privacy and other civil liberties of its citizens that would be unimaginable here in the US.
Where do you get the `Right Wing' in this statement?
Hint:
Right wing == distrustful of all government, belief in strict limits on state power, and firm adherence to the rule of law
Left wing == distrustful only of the current government, belief in replacing it with one which will have more power over the rights of the individual, but will be `good' this time, no really, we promise.
A government that holds its own citizens indefinitely without charges on the brig of a ship in South Carolina because of a supposed plot to set off a "dirty bomb" in D.C., despite Constitutional requirements for due process, is what I call an authoritarian regime.
With due respect, leaving aside the fact that we have not even reached the 48 hour point, Mr. al-Mujahir had a lawyer in New York, and did not choose to contest his transfer to military jurisdiction (he may choose to contest this later).
At any rate, that a US citizen caught entering the nation as part of an act of war can be tried in military jurisdiction is a clearly established constitutional precedent, with case law dating back to the early nineteenth century, the Civil War, and World War II. So, as I said, `I do not think it means what you think it means'.
A government whose Attorney General feels the need to cover the breast of Lady Justice because it makes him "uncomfortable" is not a group I want censoring my free speech.
Too bad Mr. Ashcroft never said anything of the sort (and I welcome you to look for a cite). It's a shame that a PR aide deciding to put a plain-color background behind the AG when he speaks for the cameras is not as exciting as the version of the story you've come up with, but that's life...
With due respect, of course the government is subject to our laws. That's what it means to live in a constitutional republic with rule of law and specific limitations on government. I'm not saying there aren't abuses, and we must always be vigilant to fight them, but to say the government is not bound by law is simply incorrect, and is a way of knuckling under to such abuses as do occur.
By the way, take a look at what is required in order to ammend the constitution. This isn't something that government can `just do'.
Slashdot Mirror
Some articles with more information:
A piece from NewsDay, which among other details, confirms that Mr. al-Muhajir had legal representation in New York, and adds that a legal hearing is being held today to confirm his status. This article also suggests that Mr. Muhajir was initially detained on a material witness warrant.
A piece from the Baltimore Sun suggests that the government is rethinking use of military law in this case, and discusses some of the precedents in either direction.
A piece from USA Today suggests that al-Muhajir's lawyers are almost certainly proceeding with a habeaa corpus petition, and points out that regardless of venue, no one is suggesting that he does not have a right to do so. It is also pointed out that the primary ramification of a ruling that Mr. Muhajir is an enemy combatant would not be a new venue of trial per se, but permission to hold him until the end of hostilities.
I'm still looking for more definitive word on the legal maneuvers already pursued and still open in the case. None of this is new precedent -- as mentioned earlier in this thread, many of the details were hashed out during the Second World War, when a group of German spies, including a handful of US citizens was infiltrated from submarine into the continental US with plans to wreak havoc by bombing Jewish-owned stores and other civilian targets.
And if we lived in a state calling itself a pure democracy, your argument would be on target. We don't, for the simple reason that pure democracy is very subject to abuse by regional cliques and other anomalies which are much more anti-democratic in effect than the compromises built into the current system.
Get over it.
The Washington post article covers the fact that he had a lawyer in New York, and that he had originally been one of a number of people held on lesser charge before being transferred. The cable news networks have had pretty good discussion of all of this stuff -- I'll try to dig up some transcripts, as they come online.
But if the State defies the constitution, then what do you do? Just about everything our Central State does violates the 10th amendment. The Constitution spells out pretty much the Central State's legit activities, but it is way out of bounds _on everything_. Just pick a topic, any topic.
Here we're mostly in agreement -- this fact was at the core of the `Republican revolution' of the mid-nineties. There are many groups, such as the Institute for Justice and the Mountain States Legal Foundation fighting the good fight in this area, though.
And just to present one coherent argument, the so-called war on terrorism is unconstitutional. The constitution sets out the process for engaging in war. Congress has not declared war. Bush is letting the military dogs out, with the Congress's approval (but not declaration of war). That's plainly unconstitutional.
This is simply incorrect. It is, of course, true that we are not in a declared war, but even outside the scope of such a conflict, the Constitution gives the President far-reaching authority to use military force, and even more recent legislation demanding approval from congress for extended use of military force has been followed scrupulously in this case. Almost since the birth of this nation, Presidents have used this authority to defend the nation and its interests -- witness Jefferson's actions against the Barbary pirates, another undeclared war against another terroristic non-state actor.
However, our government sets the limits on what it can do--it is its own authority. In other words, it really sets no limits for itself. For those of you who remember, recall the congressional efforts to self-impose spending limits. They just cannot and will not. There are no limits to what our government will do, given that it can flummox the mindless government-educated masses.
We're not discussing house rules and procedures, though even there I'm not sure how `not passing a law' equates to `not following a law' in your book. We're talking about the Constitution, which by definition defines the limits even of law.
Any law which purports to violate the constitution is simply a nullity, and contrary to your vague implications, this has held up very well over the centuries.
So, if you would like to present a coherent argument for considering Bush and Ashcroft to be anti-constitution, present it. Innuendo is not argument.
It says nothing about that, because it isn't a particularly interesting issue. All they did was give each state the same number of electors as they have congressmen. Anything else would have required redoing the painful compromise worked out for congressional representation. They didn't really care about opening that can of worms, because they thought elections would usually end up in the house (there's an extra stipulation that there will be only 1 vote per state in House elections).
I don't think that that really disagrees with what I wrote at all. You are quite correct that the large-state issue, and the corresponding compromise emerged first in the discussions of legislative representation. I don't think that this makes the decision to use the same solution which was reached in that case for the electoral process a light or haphazzard decision.
I'm curious if you would provide a source for the statement that the Founders expected most presidential elections to end up in the house -- this is certainly not the impression I had, or something I have seen claimed elsewhere.
My problem with your posts is that you seem to think the system is working now according to its original design, and thus the conceptions of the designers in this matter are important.
I don't think that anyone is claiming this. What I feel is noteworthy is that the system as it exists today is one that was provided for by the law as written and as ammended in the centuries since written.
In other words, I don't see the evolutions which have occurred within the parameters set by the Constitution as reflecting poorly on the original -- indeed the power of the constitution to evolve through ammendment has allowed it to last longer than any other written constitution in the history of the planet, and reflects very well on the wisdom of its authors.
I do have a problem, however, with legislators and judges who would attempt to short-circuit this evolution by creative re-interpretation of words and phrases which have plain meanings.
Thank you. Do you have a source where I can read up on it, since the US media can't be bothered to keep us informed?
The Washington Post and others have had coverage of this over the last day and a half.
I certainly agree that a SCOTUS review of the current case would be reasonable, and expect that we may well see one -- remember that while Mr. al-Mujahir and his lawyer have not yet contested his case being transferred to military jurisdiction (and chose not to at the time), they may well do so in the days ahead. It is still quite early in this case.
With due respect, I suggest you read more about Mr. al-Mujahir's case. In particular, Mr. al-Mujahir did retain a lawyer while in custody in New York, and waived his opportunity to contest being transferred to military jurisdiction. He still may well contest this transfer at a later date.
As for the constitutional precedent for trying US citizens entering the US as part of an act of war by a foreign power in military jurisdiction, this goes back to the earliest days of our Republic, with case-law precedents in the early nineteenth century, the Civil War, and the Second World War.
In short, as Bush has clearly stated, we are at war with the specific terrorist network which attacked us on September 11, and such groups or nations as may align with them to plan specific and credible future attacks.
I agree 100% that the pussy-footing around the issue of the specific identity of those who attacked us, and the use of the term `war on terror' instead of `war on a particular totalitarian and murderous offshoot of Islam which has chosen to declare war on us' in the interest of not offending anyone is... unhelpful.
While I disagree with your characterization of the Founders intentions (and I would argue that reading what they actually said and wrote on the matter backs up my view), this is irrelevant to the current discussion.
Even if we agree that this is why an electoral college was instituted, this only explains the indirect-election aspect of such an institution. It tells us nothing about why the Founders chose to make representation in such an institution not strictly proportional -- and, as I said, the reason for this was quite explicitly to address the large-state problem. At any rate, the indirect-election aspect of the EC no longer exists in practice.
I'm a little more concerned about your last sentence though.
Certainly, it is the case that the Constitution has evolved, through the mechanism of adoption of Constitutional Ammendments, which was specifically provided for by the founders. But this evolution neither serves as an indictment of the original document (which, after all, is what made such Ammendments possible), nor justifies the attempts by some to change the clear meaning of the Constitution without ammending it, such as in the lacking enforcement of the second, ninth, and tenth ammendments.
Well said. Moderator, please mod parent up.
Care to point out where in the constitution that is said?
By all means. See Article 2 of the US Constitution:
Note that `in such manner as the Legislature thereof may direct'. In no way does it say `in such manner as the Supreme Court thereof may direct, if they don't like the results of the first count'. This is a federal duty of the state legislature, and is subject to federal, not state judicial review.Pretty clear, really.
As for the rest of your post, I agree 100% that the precedent is crucial here. Can you imagine the results if we set the precedent that if a party (the Democrats in this case, but it could be either) could overturn the results of an election by going to the state courts of each state they think they have influence in?
While I disagree with your characterization of the reasons for the electoral college, this is an irrelevancy at any rate -- independence of electors has not existed in fact for almost a century. (I would suggest you look into the discussions of the matter in the Federalist Papers, if you want to see what the Founders themselves said on the matter, though).
As for the small states argument, it's a simple matter of fact that were voting strictly proportionate, a small number of coastal states would have a massively disproportionate role in presidential elections, while small states would likely never be visited at all.
With due respect, I suggest you read more about Mr. al-Mujahir's case before you start drawing wild conclusions.
In particular, Mr. al-Mujahir had a lawyer while he was being held in New York, and waived the opportunity to contest being transferred to military jurisdiction. He is more than welcome to contest this transfer if a later date if he wishes to. Likewise, your claim that this case was kept secret is simply false. It is certainly true that the media became more interested in Mr. al-Mujahir's case when the larger charges of attempting to explode a dirty nuclear device in the US were added to his case, but his detention was a matter of public record at all times.
As for Mr. al-Mujahir being subject to military jurisdiction, the precedent for trying US citizens caught entering the nation as an act of war on behalf of a foreign power dates back to the earliest days of this nations' history, with cases in the early nineteenth century, the Civil war, and the Second World War.
Even the page you cite does not attempt to claim that Echelon is used to intercept domestic traffic within the US.
If you have credible evidence that Echelon is being used to spy on US citizens without court-approved warrants, I welcome you to cite it.
he Bill of Rights didn't stop Bush STEALING the presidency in full view of the world's media did it?
Care to back up that claim? AFAICT, the US Constitution did a very good job of preventing Al Gore from stealing the election.
Remember that presidential elections are a federal matter, and outside the jurisdiction of state courts. When SCOFLA ruled otherwise, the SCOTUS had no choice but to step in, to uphold the seperation of powers called for by the constitution.
Except that the USA PATRIOT act does nothing which is on the scale of this bill at all. In particular, it does nothing to remove the need for judicial review of such surveillance, as required by the US Constitution.
What it does do is extend the same practices which were already ruled constitutional when JFK and RFK instituted them against organized crime to organized terrorist groups.
Which is well and good -- there are several ammendments (II, IX, X come immediately to mind) which are not enforced as they should be, and if you're arguing for a return to a strict constructionist reading of the constitution, we're 100% in agreement.
But this doesn't make the claims in the responded-to post any less absurd. The fact remains that our government does operate within the rule of law and constitutional limitations, and to refer to it as an `authoritarian regime' is the utmost in silliness.
Elected? Thats a good one! I seem to remember the supreme court appointing him....
With due respect, care to back up that claim?
What you call the Supreme Court `appointing' someone was simply the Supreme court confirming what is clearly written in the Constitution -- that a state judiciary (SCOFLA in this case) may not step in and overturn the results of a federal election.
It's not that complicated, man.
This is spot on. The only thing I would add is that this makes more clear than ever the need for a system which places hard and fast limits on what even an elected government can do.
The US has the Bill of Rights. The UK does not. People often fail to recognize what a huge difference this is.
Sure looks to me like the `Even if' in your sentence suggests that the Right would not be opposed to this were it not for financial concerns. Perhaps you meant something else, and just phrased it poorly?
I understand you meant this ironically, but quite seriously: can you provide any cite to something on this scale happening in the US at all?
I know it's very fashionable to say `US bad, Europe good', but the fact remains that England has impositions on the privacy and other civil liberties of its citizens that would be unimaginable here in the US.
Official Secrets Act, anyone?
Where do you get the `Right Wing' in this statement?
Hint:
Right wing == distrustful of all government, belief in strict limits on state power, and firm adherence to the rule of law
Left wing == distrustful only of the current government, belief in replacing it with one which will have more power over the rights of the individual, but will be `good' this time, no really, we promise.
A government that holds its own citizens indefinitely without charges on the brig of a ship in South Carolina because of a supposed plot to set off a "dirty bomb" in D.C., despite Constitutional requirements for due process, is what I call an authoritarian regime.
With due respect, leaving aside the fact that we have not even reached the 48 hour point, Mr. al-Mujahir had a lawyer in New York, and did not choose to contest his transfer to military jurisdiction (he may choose to contest this later).
At any rate, that a US citizen caught entering the nation as part of an act of war can be tried in military jurisdiction is a clearly established constitutional precedent, with case law dating back to the early nineteenth century, the Civil War, and World War II. So, as I said, `I do not think it means what you think it means'.
A government whose Attorney General feels the need to cover the breast of Lady Justice because it makes him "uncomfortable" is not a group I want censoring my free speech.Too bad Mr. Ashcroft never said anything of the sort (and I welcome you to look for a cite). It's a shame that a PR aide deciding to put a plain-color background behind the AG when he speaks for the cameras is not as exciting as the version of the story you've come up with, but that's life...
With due respect, of course the government is subject to our laws. That's what it means to live in a constitutional republic with rule of law and specific limitations on government. I'm not saying there aren't abuses, and we must always be vigilant to fight them, but to say the government is not bound by law is simply incorrect, and is a way of knuckling under to such abuses as do occur.
By the way, take a look at what is required in order to ammend the constitution. This isn't something that government can `just do'.