Leaving aside the issue of statutory construction...
"No they don't, the process appears to be arbitrary, probably due to the fact that next to no evidence exists against most of those captured, other then hearsay or unreliable accusations obtained via bribery and the like."
The process was illy defined in the Supreme Courts decision, that is unquestionable. I also dont know how it carried out in practice, I doubt many people really do. But, im not going to criticize it as arbitraty and point out the defects in the applicable rules of Evidence before i actually know what those are.
I can understand being upset at the process and wanting more information about it, but you cant criticize what you dont know. Do you know what rules of Evidence apply in such a proceeding? The Federal Rules of Evidence? Some set of Military Rules of Evidence? How does it define heasrsay? What are the hearsay exclusions and exceptions?
I dont know the answers to those questions, I doubt that you do either. But I think that we can agree that we should know more about it.
President Bush did not make up the term "unlawful combatant." To say that he did is just completely wrong. The concept of an unlawful combatant (or more correctly, an enemy combatant) has been around for a long time.
In Ex parte Quirin, 317 U.S. 1, which was decided by the Supreme Court in 1942, the Court recognized the presidents power to try enemy combatants in military tribunals instead of civil courts. This was the case, where the FBI caught a group of German guys who came to long island in a submarine. They were going to sabotage various parts of the American infrastructure.
Basically what it all comes down is whether or not you believe that the United States should be considered at war when you think of "The war on terror." If you think that we are at war, then looking at our previous jurisprudence the president would be able to keep these people out of the American civil Courts. (not that i'm saying that his hacker is a terrorist) Here is an excerpt of that case:
"By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals." Id. at 30.
And for my second point.....
For what its worth, every person who is brought to gitmo has an opportunity to challenge the factual basis for their labeling as an enemy combatant before a tribunal. "...due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." Hamdi v. Rumsfeld, 542 U.S. 507, at 509 (2004).
Slashdot Mirror
Leaving aside the issue of statutory construction... "No they don't, the process appears to be arbitrary, probably due to the fact that next to no evidence exists against most of those captured, other then hearsay or unreliable accusations obtained via bribery and the like." The process was illy defined in the Supreme Courts decision, that is unquestionable. I also dont know how it carried out in practice, I doubt many people really do. But, im not going to criticize it as arbitraty and point out the defects in the applicable rules of Evidence before i actually know what those are. I can understand being upset at the process and wanting more information about it, but you cant criticize what you dont know. Do you know what rules of Evidence apply in such a proceeding? The Federal Rules of Evidence? Some set of Military Rules of Evidence? How does it define heasrsay? What are the hearsay exclusions and exceptions? I dont know the answers to those questions, I doubt that you do either. But I think that we can agree that we should know more about it.
President Bush did not make up the term "unlawful combatant." To say that he did is just completely wrong. The concept of an unlawful combatant (or more correctly, an enemy combatant) has been around for a long time.
In Ex parte Quirin, 317 U.S. 1, which was decided by the Supreme Court in 1942, the Court recognized the presidents power to try enemy combatants in military tribunals instead of civil courts. This was the case, where the FBI caught a group of German guys who came to long island in a submarine. They were going to sabotage various parts of the American infrastructure.
Basically what it all comes down is whether or not you believe that the United States should be considered at war when you think of "The war on terror." If you think that we are at war, then looking at our previous jurisprudence the president would be able to keep these people out of the American civil Courts. (not that i'm saying that his hacker is a terrorist) Here is an excerpt of that case:
"By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals." Id. at 30.
And for my second point.....
For what its worth, every person who is brought to gitmo has an opportunity to challenge the factual basis for their labeling as an enemy combatant before a tribunal. "...due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." Hamdi v. Rumsfeld, 542 U.S. 507, at 509 (2004).