Military Commissions Act/Keith Obermann report

[STAGE 2]

I would think that after reading the entire Act, it becomes more than clear that "any person" could be subject to a Military Commission by being declared an "unlawful enemy combatant" should a Military Commission want to charge someone with discussing a conspiracy theory which the Commission felt came under the Administration's definition of "emboldening the enemy."

Its not more than clear because you are subjectively reading from provisions without reading them in context.

‘‘(3) ALIEN.—The term ‘alien’ means a person who is not a citizen of the United States.

‘‘§ 948b. Military commissions generally ‘‘(a) PURPOSE.—This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combat* ants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.

‘‘§ 948c. Persons subject to military commissions ‘‘Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.

‘‘§ 948d. Jurisdiction of military commissions ‘‘(a) JURISDICTION.—A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.

and finally...

SEC. 7. HABEAS CORPUS MATTERS.

‘‘(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Not seeing a pattern here? Selective reading maybe? Whether or not a citizen is labeled an enemy combatant isn't the issue. I can label you an enemy combatant, scream it from the roof tops, and stamp it on your forehead, and nothing under this act will allow me to do anything other than give you your day in court.

[Gary Conner]

Dear Stage 2:

I notice you conveniently post each and every subsection of 948 with the exceptionof a.

Here it is:


948a., the very first paragraph, section (1) (i), gives the definition of an "Unlawful Enemy Combatant" as follows:

"a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant" can be determined to be an "unlawful enemy combatant" according to that chapter.

Since this is the VERY FIRST paragraph, I cannot understand why you don't address it.

You said I could not point out one thing that would allow a citizen to be prosecuted under this act.

I pointed out the above subchapter number for you in my previous post, but you seem to want to read only selected ones. The ones you selected, are not the ones upons which I based my concern. I submit your looking only at the subchapters I AM NOT discussing, kind of defines the term "selective reading."

Stage 2, the very Articles of the Constitution direct that the President, if not in agreement with a Billl, SHALL RETURN it to the House in which it originated for the purpose of a majority vote. This President doesn't do that.

This President instead scribbles comments directly onto a Bill presented him, claims it to be a "signing statement" and announces his Administration accepts as valid only the portions he indicated, and sends the entirity to the Federal Register to be printed.

This Administartion has "made" a treaty with Mexico and Canada styled as the "North American Partnership Agreement" (which deals in border issues that are supposed to be regulated by Congress) without one single vote from Congress approving of this treaty (much less a majority vote in the Senate) in a direct violation of Article II of the Constitution of the United States prohibiting him from "making" a treaty without Senate authorization.

Those are just two of the reasons, that his letter announcment which accompanied the announcment of his signing the Military Commissions Act, should be of concern for anyone who could be found to be "any person" "engaged in discussing "conpiracy theories" which could "embolden the enemy." It attempts to void the First Amendment.

Considering the first paragraph says the words "any person who materially supported" hostilities could be considered an unlawful enemy combatant, I submit you are wrong as wrong as can be when you say I cannot show you specifically what I am talking about.

If "a person" is found to be an "unlawful enemy combatant" under that definition, he or she could be (1) prosecuted under this act (2) held indefinitely (3) Put to death.

[STAGE 2]

I keep saying.... so what? You can label people all day long. Military commissions under this bill don't have jurisdiction over citizens. Its that simple.

[Gary Conner]

You continue to say "so what" because you believe the following language excluded U.S. Citizens, and it does not.

Here is your entire argument, in 948c.: ‘‘§ 948c. Persons subject to military commissions ‘‘Any alien unlawful enemy combatant is subject to trial by military commission under this chapter."

Do you comprehend the importance of the fact that the sentence above, does not say or specify "limited to" any unlawful alien enemy combatant? It says "persons subject to" the act are "...any alien unlawful enemy combatant" but it does not rule out any citizen found to be an unlawful enemy combatant.

That is where you are as wrong as wrong can be, when you say it is exclusionary, as it is not. It only sets forth the statement that people who are aliens can are subject to it, however, it (for a reason) does not say specifically "no U.S. citizen" can be subject to this Act.

You are claiming it states that No Citizen is subject to trial by military commissions. And in that, you are just wrong.

So the "So What" is again, 928a (1) (i), which DOES say "The term Unlawful Enemy Combatant means-"A Person who"...

And therefore, once you are "labeled" as such, then you are subject to it, whether you are an alien, or a citizen who is "labeled as an "Enemy Combatant" and that is a HUGE difference in what you are saying the Act excludes.

That is why some of the greatest legal experts in America are mighty concerned right now, because in many's view, it is not a small issue to be "labeled an illegal enemy combatant.

That is the "so what". And if you read further in 928a (ii) you will see that it goes on to say "...any person who""...is subject to" the act.

So it is indeed troublesome, and not just a "so what" issue.

[STAGE 2]

Do you comprehend the importance of the fact that the sentence above, does not say or specify "limited to" any unlawful alien enemy combatant? It says "persons subject to" the act are "...any alien unlawful enemy combatant" but it does not rule out any citizen found to be an unlawful enemy combatant.

That is where you are as wrong as wrong can be, when you say it is exclusionary, as it is not. It only sets forth the statement that people who are aliens can are subject to it, however, it (for a reason) does not say specifically "no U.S. citizen" can be subject to this Act.

This is your problem and the problem of so amy others who aren't lawyers or who don't understand the law. Jurisdiction is never presumed. Jurisdiction MUST BE EXPRESSLY GRANTED either constitutionally or by statute. If the enabling statute doesn't specifically give jurisdiction over someone then a court doesn't have it. Its that simple.

If I make the statement, "I have jurisdiction over apples", by law, even though I didn't say that I don't have jurisdiction over oranges and pears, my jurisdiction is limited to apples. Thats how the judicial system works, thats how statutory construction works, and thats why you are wrong.

[Gary Conner]

This is your problem and the problem of so amy others who aren't lawyers or who don't understand the law. Jurisdiction is never presumed. Jurisdiction MUST BE EXPRESSLY GRANTED either constitutionally or by statute. If the enabling statute doesn't specifically give jurisdiction over someone then a court doesn't have it. Its that simple.

Thank you Counselor for pointing out you have yet to read the entire Act.

The authority is intentionally "granted" within this act (unconstitutionally) for a Military Commission Officer to hold you for any amount of time they wish, should they "label" you a suspected "illegal enemy combatant."

That is my whole point. While I ASSURE you I don't believe the Constitution grants jurisdiction over American Citizens for secret trials nor does it grant power to the military to hold a Citizen for an indefinite length of time in secret without his preferred choice of counsel should the Military Commission decide it is a "National Security" matter, the Act itself is intended to EXPRESSLY (meaning "for a particular purpose") GRANT jurisdiction.

That Counselor, is my whole point. Thank you for assisting me in making it.

[STAGE 2]

I guess I can lead you to water but I cant make you drink. One last question for you. What is your excuse going to be when this passes constitutional muster and SCOTUS gives their approval

[Mad Martigan]

Originally Posted by Gary Conner

You continue to say "so what" because you believe the following language excluded U.S. Citizens, and it does not.

Here is your entire argument, in 948c.: ‘‘§ 948c. Persons subject to military commissions ‘‘Any alien unlawful enemy combatant is subject to trial by military commission under this chapter."

Do you comprehend the importance of the fact that the sentence above, does not say or specify "limited to" any unlawful alien enemy combatant? It says "persons subject to" the act are "...any alien unlawful enemy combatant" but it does not rule out any citizen found to be an unlawful enemy combatant.

That is where you are as wrong as wrong can be, when you say it is exclusionary, as it is not. It only sets forth the statement that people who are aliens can are subject to it, however, it (for a reason) does not say specifically "no U.S. citizen" can be subject to this Act.

You are claiming it states that No Citizen is subject to trial by military commissions. And in that, you are just wrong.

So the "So What" is again, 928a (1) (i), which DOES say "The term Unlawful Enemy Combatant means-"A Person who"...

And therefore, once you are "labeled" as such, then you are subject to it, whether you are an alien, or a citizen who is "labeled as an "Enemy Combatant" and that is a HUGE difference in what you are saying the Act excludes.

That is why some of the greatest legal experts in America are mighty concerned right now, because in many's view, it is not a small issue to be "labeled an illegal enemy combatant.

That is the "so what". And if you read further in 928a (ii) you will see that it goes on to say "...any person who""...is subject to" the act.

So it is indeed troublesome, and not just a "so what" issue.

Gary, I've already pointed out that none of this changes the fact that section 7a of the Act states that American citizens cannot be denied the habeas corpus rights whether they are classified as unlawful enemy combatants or not. Unless an American citizen can somehow be tried by military commission under habeas corpus, he won't be subject to any military commission, unlawful combatant or not, BECAUSE of those habeas corpus rights(specifically mentioned and affixed to US citizens in the ACT).

[alan]

All:

People on this site or on any other can argue themselves blue in the face, to no avail at all, for it is the courts, likely the USSC that will ultimnately decide the meaning of the various sections.

We might not care for the way things work, but that is the way they work, in this country, until some very basic changes are made. This is not to say that the thing should not be argued, or that discussions should not be had. I merely state the facts, as they appear to me.

[Al Norris]

I have highlighted and underlined the declarative parts.

§ 948c. Persons subject to military commissions
Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.

§ 948d. Jurisdiction of military commissions
(a) Jurisdiction - A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.

Gary, you with me so far? The above explicitly lays out the sole jurisdiction for the military commissions: A military commission under this chapter shall have jurisdiction...when committed by an alien unlawful enemy combatant.

Where I believe the conflict is when we look at the following:

§ 948d(c) Determination of Unlawful Enemy Combatant Status Dispositive - A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006 , by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.

Here it appears at first glance that it says anyone, alien or otherwise may be tried by the commission. However, that goes against the prior statements of explicit jurisdiction (§ 948c and § 948d(a)). As such, an explicit statement of jurisdiction voids any further statement(s) that would tend to contradict it.

Further, the phrase "a person" must be read in light of jurisdiction, such that, "a person" refers to an alien person. That is how the Courts will read the law. It's called Statutory Construction for a reason: To make all parts of a law conform to the whole.

Can a citizen be declared an unlawful enemy combatant? Yes, most assuredly. Yet, these military commissions have no jurisdiction over citizens. Such a person would fall under the civil criminal courts and not a military court.

[Rich Lucibella]

Anti-
Is it possible that 948d(c) may have been intentionally worded that way because US Citizens may, in fact, be charged as enemy combatants? If that be the case, the earlier sections fall into place by making it clear that those enemy combatants (US Citizens) are not subject to Military Tribunal, but would be transferred to DOJ after the findings of the Review Tribunal.

IOW, under that reading, 948d(c) does not allow for citizens to be tried by Military Tribunal; rather, it simply clarifies that they are not precluded from being charged as Enemy Combatants if, for instance, found on the battlefield in a foreign land.
Rich

[Mad Martigan]

Apparently I'm reading this Act the same way you two are. The protection afforded US citizens is readily apparent to me.

[STAGE 2]

You and everybody else that is being honest or isn't a cheerleader for the DNC.

[Al Norris]

Originally Posted by Rich

...rather, it simply clarifies that they are not precluded from being charged as Enemy Combatants if, for instance, found on the battlefield in a foreign land.

... or fomenting terrorism on US soil (and I would be surprised if we didn't have such, wandering around the US).

Yes, Rich. That's exactly the way I read this.

[Gary Conner]

Based upon the last posts by Antipitas and Rich Lubela, it appears from your points being made in those posts, you at least appear to agree that an American Citizen could be now labeled an "unlawful enemy combatant" BY a Military Commission, and put to stand trial in (most probably) A CIVILIAN COURT (rather than being held indefinitely by the Military Commission) for the act of "Emboldening the Enemy" by engaging in "Conspiracy Theories?"

The Presidents statement letter issued regarding the Act (if anyone has had time to read that letter which I have been pointing out) contends that "conspiracy theories embolden the enemy."

A reading of the language in the Act very strongly suggests the Act is intended to be the "express" granting of the jurisdiction to the Military Commission, should the Military Commission Officer in charge of it, determine a National Security issue is involved.

But at least thus far, there appears to be agreement (based upon Rich's and Antipitas' post if I am reading them correctly) an American Citizen can be Labeled as an "Unlawful Enemy Combatant" BY the Commission. Am I correct in that assumption Rich and Antipitas? Do you beleive the language in that Act attempts to grant the Commission the authority to do that?

[Gary Conner]

You and everybody else that is being honest or isn't a cheerleader for the DNC.

Stage 2, just for the record, I am far from a cheerleader for the DNC, if you are referring to me.

In addition to being asked to serve as a Delegate to our Republican State Convention in Texas this past summer, I volunteer for some local Republican AND Democrats candidates running locally. I have two autographed photographs from President Bush and Laura Bush above my desk, which were sent for each time I contributed to the RNC.

So I am far from a DNC Cheerleader.

I am more concerned with preservation of our Constitutional rights and freedoms, regardless of where the threat comes from.

[STAGE 2]

I've been telling you for the last 3 posts that nothing in the act nor the constitution prohibits a citizen from being labeled an enemy combatant and it just now appears to you?

[Rich Lucibella]

Gary-
I'm not making a statement. Rather I was asking a question.

I refer here ONLY to US Citizens:
If my reading is correct, it does not necessarily follow that the Act suddenly renders American Citizens subject to Enemy Combatant status. This may have been a crime prior to the Act; see where I'm going?

As example: What would we charge Padilla with if we charged him in Federal Court? Enemy Combatant? Treason? I'm unclear on this. However, if the Act, for the first time, creates a new class of potential criminals called "Enemy Combatant", then I would certainly expect it to spell out the Sentence for such crimes.

In short, unless "Enemy Combatant" is already a federal crime (perhaps equating to "Treason"?), then your interpretation holds and I'd agree the language is disturbing.
Rich

[Mad Martigan]

Originally Posted by Gary conner

Based upon the last posts by Antipitas and Rich Lubela, it appears from your points being made in those posts, you at least appear to agree that an American Citizen could be now labeled an "unlawful enemy combatant" BY a Military Commission, and put to stand trial in (most probably) A CIVILIAN COURT (rather than being held indefinitely by the Military Commission)

I've been telling you that since the last page.

[Mad Martigan]

Originally Posted by stage 2

You and everybody else that is being honest or isn't a cheerleader for the DNC.

I don't think a concern for the protection of our cherished rights as Americans or a general distrust and suspicion of the use of power by the Federal government makes you dishonest or a cheerleader.

[gc70]

Is it possible that 948d(c) may have been intentionally worded that way because US Citizens may, in fact, be charged as enemy combatants? If that be the case, the earlier sections fall into place by making it clear that those enemy combatants (US Citizens) are not subject to Military Tribunal, but would be transferred to DOJ after the findings of the Review Tribunal.

Rich nailed it. In the Hamdi case, SCOTUS clearly recognized that US citizens could be charged as enemy combatants and addressed habeus corpus and due process requirements for that determination.

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. (p26)

[Oldphart]

As I read through these pages of posts and notice how everyone wants to nit-pick about language and intent, I keep thinking about the word "penumbra" and how it has changed some aspects of other laws we once thought were inviolate.

When the Kaiser passed laws about gun regisatration he didn't go out and round up, gas and cremate a bunch of Jews but the next administration certainly found his laws useful for just such a task. I doubt that Bush will do anything serious with this new power, but how about President Hillary Clinton?

Our government has a long and dark history of passing laws to help someone then amending them and using them for less than benificent ends. Anyone remember the debates leading up to passage of the Social Security Act? 'No, we will never use Social Security Numbers to track and identify citizens.' And we're all aware of how the Interstate Commerce clause has been misused to regulate everything from wheat to guns.

If any of you truly believes this law won't somehow, sometime, somewhere be used against lawful American citizens I suggest you check for colon polyps while you've got your head in there.

[gc70]

Not an attractive mental image, oldphart.

It is necessary to discuss a law's details and specifics because the alternative is to dismiss the law based on nothing more than fear and suspicion. No law, not even the Constitution, would qualify as being immune to future interpretation, modification, and potential abuse.

[Oldphart]

gc70 said "Not an attractive mental image, oldphart."

No matter how you look at it.

[badbob]

Here's part of what the JPFO has to say about the "Military Commissions Act" Link to entire article: http://www.jpfo.org/alert20061023.htm

Maybe the JPFO is a "cheerleader for the DNC."

"The removal of Habeas Corpus only applies to aliens."

True, as far as it goes. Now what happens if you're picked up as an "alien"? You can't prove otherwise because without the right of Habeas Corpus, you cannot demand to go to court to make your case.

Or you could simply be declared a UEC, or "unlawful enemy combatant". Section 948(a) of the MCA defines "unlawful enemy combatant" as:

(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the president or the secretary of defense. (11)

Note that this definition (much broader than previously-used definitions) contains NO exception for American citizens. And the Second Circuit Court of Appeals previously upheld the UEC label as meaning you are no longer under the protection of the Bill of Rights (12). All the government would have to do at your habeas corpus hearing is provide some evidence that you have engaged in some act of terrorism (maybe you donated to an organization "suspected of terrorist ties"...).

Jacob Hornberger -- another conservative -- points out:

"How does an American who is labeled an enemy combatant ultimately get tried? Answer: he doesn’t. Under the Military Commissions Act, trial by military tribunal is limited to foreigners. So, even though Americans still have the use of habeas corpus (so far) to test whether their detention is lawful, if the Supreme Court ultimately upholds the “unlawful enemy combatant” designation for people accused of terrorism, Americans will be returned to indefinite military custody as “unlawful enemy combatants” if the government has provided some evidence of terrorism at the habeas corpus hearing." (13)

badbob