I'm quite clear about their status. They are prisoners of war, but they have forfeited the protections of the convention by waging war unlawfully. In short, they are unlawful combatants. This isn't hard to understand. Are you still confused?
There are also established protocols for holding POWs. Both confinement and adjudication of any war crimes charges can and are being handled at Guantanamo Bay, a US Navy base. There is no reason to bring them into the continental US. There is no need to bring them to an Army installation. There is no reason that courts martial or military commissions can't be held at Guantanamo which has also previously been used for confinement in other contingencies. There is little new in this, just unfamiliarity for many people.
(a) In General.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
To qualify for the protections of the Geneva Conventions you have to wage war lawfully, it is part of the enforcement mechanism of the treaty. Al Qaida doesn't do so. They are unlawful combatants. They could still be charged with war crimes. And no, it isn't a legal fallacy.
People get arrested in both free and repressive countries. The difference is the reason, and the likely outcome. In the Soviet Union you could be arrested for making a joke about the national political leadership and go to the Gulag for 10 years. In the US? Not so much. I doubt you have a real handle on repression in communist countries.
So are you claiming that you have a statistically valid representative sample that you are generalizing from to paint all law enforcement officers across the country as bad? Or are you grinding an axe based on a small sample of aberrant cases and maybe a few unhappy experiences?
End of a conflict against a tactic.... be a long wait for that one..
The Authorization for Use of Military Force is pretty clear about who the US is at war with. The only puzzling thing is why people keep getting hung up on symbolic language as if it is really confusing. Nobody seems to be confused about who the war was against during the "war against fascism" between 1939-1945, but the "war against terror" from 2001-2013 seems to "baffle" people.
The US has a court system and its still working.... and US law and international treaty obligations are clear, get people before a real court.
Those treaties allow al Qaida members to be held as enemy combatants and tried before military commissions if applicable.
That's because they are being held as prisoners of war. There is no need for changes. If you bother to check the US, UK, and other countries held hundreds of thousands of captured soldiers without charges because they are neither needed to hold them or appropriate. They could be separately changed with war crimes while being held until the end of the conflict.
He wouldn't be arrested, they don't have to do that in America anymore - they "detain" you.
Citation needed. Never heard of a single instance of such thing happening in my 40 years of living in the USA.
Ever hear of this guy who spent years in jail being tortured before facing charges? He is even a U.S. citizen -- Julian Assange is not.
Turns out he was arrested. FTA: "Padilla was arrested in Chicago on May 8, 2002"
He was held as an enemy combatant. Under the law at the time no charges would be needed, he would have been a PoW, just like the hundreds of thousands of German and Italian prisoners held in the US without trial. That is the way the law of war works. The US was at war with al Qaida under the authority of the Authorization for Use of Military Force passed by the Congress - legally equivalent to a declaration of war.
A crucial difference between Padilla and Assange is that Assange has not taken up arms against the US. Padilla did. He was convicted of terrorism related offenses after his case was moved to civilian courts.
He does not have to take up arms, look at what they want to charge Snowden with and what they did charge Manning with
That would be espionage, which was in my second line. If Assage were to come to the US, and was arrested, he would almost certainly be processed through the civilian courts.
Manning was subject the US Uniform Code of Military Justice which allows for a charge of aiding the enemy - Article 104. He was acquitted on that charge.
The only people that can appeal the order are the Feds and the people that the feds are ordering around. EPIC, despite having their metadata vacuumed up, have no standing under the law to appeal to the FISA court.
It's easy for you and others to say "[Epic] didn't follow the proper appeals process" but AFAIK none of you have actually elucidated what the proper appeals process is under the law.
This is a somewhat difficult question, especially since the Supreme Court has previously ruled that metadata is considered ordinary business records so the legal hurdle to get them is pretty low. Anyone that wants to challenge this is facing issues of venue, standing, and fighting to effectively overturn or modify an existing Supreme Court precedent. Before laying out what seem to be some possible legal strategies (INAL), it is worth remembering that even the courts acknowledge that some issues are better settled or addressed by the political system rather than the court. That is, you are better off lobbying to get the policy changed, or the a law changed or created, than trying to resolve the issue in the courts. In some cases the courts will simply reject the case. In other cases you get an awkward outcome. I think that this issue is probably best addressed in the political realm.
But as for legal strategies, they could try a class action suit against the DoJ & NSA on behalf of everyone that has had records of their calls taken. They could try finding an existing terrorism case in which evidence derived from the metadata is used and challenge it, which is what I believe is happening in one or more of the other cases out there. They could try developing a novel legal theory and suing under it. That sometimes works. (Maybe you could call it the Meta-Twinkie-Data doctrine, or data palimony.) They could try to find someone that suffered tangible harm by the metadata gathering, which will probably be a challenge. Maybe they could try filing with the FISA court, then when that get rejected go to the FISA appeals court (where they will no doubt lose), and then go to the Supreme Court. I'm sure there are a number of other possible strategies a clever lawyer could come up with.
If they pursue a path anywhere besides the FISA court they will probably have to do some venue shopping to see if there is an appeals court with a more favorable legal history for filing such a suit to begin with. When it comes to "flaky" law, the 9th Circuit seems to be a favorite. They may not have much choice if they pursue a legal strategy of pursuing the issue through an existing case. If they do that they would be limited to the jurisdiction of the existing court case.
It is going to be an uphill battle in the court system. The law is largely against them, and so is existing legal precedent. The fact that the US is engaged in a armed conflict against al Qaida is also going to weigh in the balance. This is probably better handled through Congress, the President, or maybe as a long shot a civil rights complaint through one of the government civil right commissions. But, the courts are there in any event, just waiting for a case to be filed.
Because the lower court cases establish the facts and legal questions at hand. They establish a record for the appeals courts to consider. It gives a change for more legal minds to consider it and provide input to the system. It also allows cases in multiple jurisdictions to more fully develop the issue. It also gives an opportunity for the political system to correct the problems - if there is one, without the court having to act. The case may resolve itself for various reasons.
The thing to remember is that when the Supreme Court decides an issue, it is decided, for better or worse. You may not like the outcome, and the resulting precedent. That is why advocacy groups tend to pick their cases for appeal carefully, as well as their arguments. EPIC was reckless.
If you are still in college I recommend you take a course or two in the functioning of the judicial system. This was an easily predictable failure. You don't make your first filing with the US Supreme Court for just about any case an ordinary citizen could bring.
Even citizens with rights have to follow procedure.
Slashdot Mirror
I'm quite clear about their status. They are prisoners of war, but they have forfeited the protections of the convention by waging war unlawfully. In short, they are unlawful combatants. This isn't hard to understand. Are you still confused?
Legally there is no difference. The Supreme Court settled that long ago.
There are also established protocols for holding POWs. Both confinement and adjudication of any war crimes charges can and are being handled at Guantanamo Bay, a US Navy base. There is no reason to bring them into the continental US. There is no need to bring them to an Army installation. There is no reason that courts martial or military commissions can't be held at Guantanamo which has also previously been used for confinement in other contingencies. There is little new in this, just unfamiliarity for many people.
but a modern and just socienty doesn't do things the gitmo way.
And what is that? Are you saying modern and just societies don't take prisoners of war?
The Authorization for Use of Military Force passed by Congress is pretty clear.
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) In General.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
To qualify for the protections of the Geneva Conventions you have to wage war lawfully, it is part of the enforcement mechanism of the treaty. Al Qaida doesn't do so. They are unlawful combatants. They could still be charged with war crimes. And no, it isn't a legal fallacy.
People get arrested in both free and repressive countries. The difference is the reason, and the likely outcome. In the Soviet Union you could be arrested for making a joke about the national political leadership and go to the Gulag for 10 years. In the US? Not so much. I doubt you have a real handle on repression in communist countries.
The Soviet Story trailer
So are you claiming that you have a statistically valid representative sample that you are generalizing from to paint all law enforcement officers across the country as bad? Or are you grinding an axe based on a small sample of aberrant cases and maybe a few unhappy experiences?
End of a conflict against a tactic.... be a long wait for that one..
The Authorization for Use of Military Force is pretty clear about who the US is at war with. The only puzzling thing is why people keep getting hung up on symbolic language as if it is really confusing. Nobody seems to be confused about who the war was against during the "war against fascism" between 1939-1945, but the "war against terror" from 2001-2013 seems to "baffle" people.
The US has a court system and its still working.... and US law and international treaty obligations are clear, get people before a real court.
Those treaties allow al Qaida members to be held as enemy combatants and tried before military commissions if applicable.
That's because they are being held as prisoners of war. There is no need for changes. If you bother to check the US, UK, and other countries held hundreds of thousands of captured soldiers without charges because they are neither needed to hold them or appropriate. They could be separately changed with war crimes while being held until the end of the conflict.
Ever hear of this guy who spent years in jail being tortured before facing charges? He is even a U.S. citizen -- Julian Assange is not.
Turns out he was arrested. FTA: "Padilla was arrested in Chicago on May 8, 2002"
He was held as an enemy combatant. Under the law at the time no charges would be needed, he would have been a PoW, just like the hundreds of thousands of German and Italian prisoners held in the US without trial. That is the way the law of war works. The US was at war with al Qaida under the authority of the Authorization for Use of Military Force passed by the Congress - legally equivalent to a declaration of war.
A crucial difference between Padilla and Assange is that Assange has not taken up arms against the US. Padilla did. He was convicted of terrorism related offenses after his case was moved to civilian courts.
He does not have to take up arms, look at what they want to charge Snowden with and what they did charge Manning with
That would be espionage, which was in my second line. If Assage were to come to the US, and was arrested, he would almost certainly be processed through the civilian courts.
Manning was subject the US Uniform Code of Military Justice which allows for a charge of aiding the enemy - Article 104. He was acquitted on that charge.
Key words in your "Subject line": "I could imagine ..."
It is imaginary.
He wouldn't be arrested, they don't have to do that in America anymore - they "detain" you.
If they are going to prosecute him they'll arrest him, especially if he comes to the US.
I've never heard of Assange taking up arms against the US, or funding terrorists, so law of war processing is out. Espionage, maybe.
And in this case, bliss is underrated.
That and there aren't many comments on this "nerd fair" article.
I think people are still trying to digest the idea. Clearly that is more palatable than the meat. And that's not saying much....
That's some catch.
If you know of a legal system this side of a tribe without procedures, I would love to hear about it.
Is it?
The only people that can appeal the order are the Feds and the people that the feds are ordering around.
EPIC, despite having their metadata vacuumed up, have no standing under the law to appeal to the FISA court.
It's easy for you and others to say "[Epic] didn't follow the proper appeals process"
but AFAIK none of you have actually elucidated what the proper appeals process is under the law.
This is a somewhat difficult question, especially since the Supreme Court has previously ruled that metadata is considered ordinary business records so the legal hurdle to get them is pretty low. Anyone that wants to challenge this is facing issues of venue, standing, and fighting to effectively overturn or modify an existing Supreme Court precedent. Before laying out what seem to be some possible legal strategies (INAL), it is worth remembering that even the courts acknowledge that some issues are better settled or addressed by the political system rather than the court. That is, you are better off lobbying to get the policy changed, or the a law changed or created, than trying to resolve the issue in the courts. In some cases the courts will simply reject the case. In other cases you get an awkward outcome. I think that this issue is probably best addressed in the political realm.
But as for legal strategies, they could try a class action suit against the DoJ & NSA on behalf of everyone that has had records of their calls taken. They could try finding an existing terrorism case in which evidence derived from the metadata is used and challenge it, which is what I believe is happening in one or more of the other cases out there. They could try developing a novel legal theory and suing under it. That sometimes works. (Maybe you could call it the Meta-Twinkie-Data doctrine, or data palimony.) They could try to find someone that suffered tangible harm by the metadata gathering, which will probably be a challenge. Maybe they could try filing with the FISA court, then when that get rejected go to the FISA appeals court (where they will no doubt lose), and then go to the Supreme Court. I'm sure there are a number of other possible strategies a clever lawyer could come up with.
If they pursue a path anywhere besides the FISA court they will probably have to do some venue shopping to see if there is an appeals court with a more favorable legal history for filing such a suit to begin with. When it comes to "flaky" law, the 9th Circuit seems to be a favorite. They may not have much choice if they pursue a legal strategy of pursuing the issue through an existing case. If they do that they would be limited to the jurisdiction of the existing court case.
It is going to be an uphill battle in the court system. The law is largely against them, and so is existing legal precedent. The fact that the US is engaged in a armed conflict against al Qaida is also going to weigh in the balance. This is probably better handled through Congress, the President, or maybe as a long shot a civil rights complaint through one of the government civil right commissions. But, the courts are there in any event, just waiting for a case to be filed.
They aren't disqualified, but If they want to pursue the case they will have to start it just like everybody else at the lower court level.
Because the lower court cases establish the facts and legal questions at hand. They establish a record for the appeals courts to consider. It gives a change for more legal minds to consider it and provide input to the system. It also allows cases in multiple jurisdictions to more fully develop the issue. It also gives an opportunity for the political system to correct the problems - if there is one, without the court having to act. The case may resolve itself for various reasons.
The thing to remember is that when the Supreme Court decides an issue, it is decided, for better or worse. You may not like the outcome, and the resulting precedent. That is why advocacy groups tend to pick their cases for appeal carefully, as well as their arguments. EPIC was reckless.
After you lose your first court case. They didn't bother with that.
That "Citizens United" axe must be getting awfully sharp, people keep grinding on it over just about any excuse or topic.
If you are still in college I recommend you take a course or two in the functioning of the judicial system. This was an easily predictable failure. You don't make your first filing with the US Supreme Court for just about any case an ordinary citizen could bring.
Even citizens with rights have to follow procedure.