For the LAST time. The MCA ABSOLUTELY applies to US citizens.

[truebrit71]

Read it and weep:

Section 948a of title 10 of the United States Code, as added by the Act, defines an "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.

I hope that clears it up.

If the pretzeldent so deems, ANYONE, INCLUDING US CITIZENS can be deemed in "unlawful enemy combatant".

THIS MEANS YOU.

[niallmac]

1. The Democrats who voted for this scare the hell out of me.

What-on-earth-were- they-thinking?

[aquart]

3. We can't vote them out this year...but later?

[niallmac]

7. Too true. All my DU principles boil down to "Vote for the 'D' not the 'R'

[truebrit71]

For most of them I am sure they were thinking about being re-elected...

...in conservative districts that didn't need to give additional weight to any "soft on terror" meme's thrown at them.

This law is so blatantly unconstitutional that it doesn't stand a chance when it gets challenged, that maybe they were relying on that too....A VERY dangerous gamble IMHO...

[OnyxCollie]

48. Seeing Rockefeller's name on the list surprises me.

He was so concerned about Chimpy's illegal wiretapping, yet he votes for this.

[ItsTheMediaStupid]

74. Rockefeller is a lying 2-faced corporate weasel with a D by his name

Please keep him in the senate until we can find a real democrat to replace him.

Seeing him on the list doesn't surprise me at all. He's just one notch above Lieberman on the DINO scale.

[sutz12]

2. This in itself should be a poison pill

>>a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006<<

The "before" comment makes this an ex post facto law, and thus, unconstitutional. No?

[aquart]

4. You got me. Really?

Did someone deliberately sabotage this fascist piece of trash? And can we trust this horrid Supreme Court to kill it?

[truebrit71]

10. I would agree with you...

..you cannot make retro-active laws has always been my understanding..

[havocmom]

17. Yes, but, to challenge the law, one has to be adversely affected by it

Anyone in THAT situation could possibly never be heard from again. So how do you challenge?

Also, isn't there a clause in there that specifies any challenge to the law is, in its self, an unlawful act? Experts, help me out here. Isn't that the gist of what I read?

The junta makes legal what THEY want to do and maked illegal what they don't want us to be able to do. Constitution? They never heard of it.

[glitch]

76. Family members of those disappeared are adversely affected.

Along friends and community. I am adversely affected because it's done in my name, my reputation may be permanently harmed, although the Judges deciding to hear the case may not find that sufficient.
Then again, maybe they would.

[Hosnon]

23. Yep...I think that would kill it. Question is: to what extent? Would the

Supreme Court simply delete "before" and leave the statute as is without that word?

[papau]

68. Ackerman/Turley noted habeas's defacto death for citizens - will USSC

see that a problem?

After all, habeas still exists in theory for citizens. even after being called by someone an "enemy combatant". Now just how does a citizen held by the gov as an enemy combatant, the holding not known to others so no next friend filing, get to court? And if known to be held so a next friend filing, just how does the Court claim jurisdiction over the Military Commission?

Granted the USSC can make things right and give the lower court jurisdiction - efectively throwing out the law - but until then? And do you expect Scalia - who praised habeas just the other day - to overturn this grant of presidential power?

Yale Law Professor Bruce Ackerman writes in the L.A. Times :
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=2253214&mesg_id=2253214.


Jonathan Turley, professor of Constitutional law at George Washington University on KO's Countdown :
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=2420699&mesg_id=2420699

[elehhhhna]

69. The BA has only one attorney in a top job, and that's Alberto the hack.

WTH do you expect from a group that is unfamiliar with the Constitution (AKA " that Goddamnned piece of paper")

[Jcrowley]

5. Not necessarily

You could be okayed by the Combatant Status Review Tribunal who will be hiding behind mirrors whilst the torture session, uh I mean interview, is carried out to determine you're true nature.

Now step over this way pesky activist, uh I mean terrorist, as in getting in the way of corporate profitists.

Welcome to Star Chamber Nation.

[Bok_Tukalo]

6. I am not sure if the law applies to US citizens

948a Definitions

(3) ALIEN.-The term 'alien' means a person who is not a citizen of the United States.



948c Persons subject to military commisions

"Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.


http://www.loc.gov/rr/frd/Military_Law/pdf/S-3930_passed.pdf

Warning. PDF file.

[truebrit71]

9. Please re-read the original post. If the pretzeldent deems it so..

...you can be deemed an unlawful enemy combatant and that would be game over. The part you referenced is a separate and distinct definition, it does NOT override 948a 1 (ii)

[Bok_Tukalo]

11. But it does make clear who is eligible to be tried by military commision

If a citizen is accused of being an unlawful combatant, the same constitutional protections apply as they always have and they will not be included in the process outlined in this law.

[papau]

15. Sorry but wrong - a citizen accused of being an enemy alien has no

rights - the same result is true if accused of being an enemy combatant. It is quite logical as explained below:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=109&topic_id=27777&mesg_id=27777

There is the obvious fact that if a cop grabs you from your home and says your an enemy alien, and if enemy aliens can not go to court, that means you can not go to court to show that you are a citizen, because you now have all the rights of our immigrants and non-citizens - namely - no rights. Without habeas corpus, there are no other rights.

There is also in the law a neat way for the government to avoid all those trial rights that are in all the other sections. Since you get those trial rights only after the government declares you to be an enemy combatant via a combatant status review tribunal (CSRT), and since there is no statutory requirement that the government ever utilize a CSRT, you are in jail forever if the government wants you to be there. You have no access to a civilian court because the government determined you were an unlawful enemy combatant by some means other than using a CSRT.

If that is not a de facto suspension of the privilege of the writ of habeas corpus, then logic has been removed from legal rulings. But do not hold your breath waiting for our right wing controlled United States Supreme Court that broke the law to put Bush in the Presidency to see it that way and rule the Military Commission Act unconstitutional. And don't hold your breath waiting to hear about violations of the provisions of the Military Commission Act, since no one labeled an alien can sue to enforce these provisions, and thus violations will never come to light.

If you like black humor and irony, you can look forward to Supreme Court Justice Scalia (who wrote in the Hamdan case that "the very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.") voting to uphold the Military Commission Act and its ending of habeas corpus. If you want to see that some folks actually noticed the death of the American Democracy, I recommend Keith Olbermann's commentary, with Professor Jonathan Turley (http://www.youtube.com/watch?v=igycXBseoAg ) and perhaps more entertaining to those who can handle f-bomb swears, "Freedom is Under Attack" -- Rollins (http://www.youtube.com/watch?v=6waWS0Y3Ubc ).

Of course the usual suspects tried to protect our Constitution from Bush's planned destruction of our freedoms:

"With his signature, President Bush enacts a law that is both unconstitutional and un-American," said American Civil Liberties Union Executive Director Anthony Romero. "The president can now - with the approval of Congress - indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions. http://www.aclu.org/safefree/detention/27091prs20061017...

Sen. Russ Feingold, "The legislation signed by the President today violates basic principles and values of our constitutional system of government. It allows the government to seize individuals on American soil and detain them indefinitely with no opportunity to challenge their detention in court. And the new law would permit an individual to be convicted on the basis of coerced testimony and even allow someone convicted under these rules to be put to death." http://feingold.senate.gov/~feingold/statements/06/10/20061017.htm

[Bok_Tukalo]

26. Interesting

<<There is the obvious fact that if a cop grabs you from your home and says your an enemy alien, and if enemy aliens can not go to court, that means you can not go to court to show that you are a citizen, because you now have all the rights of our immigrants and non-citizens - namely - no rights.>>

That is an interesting argument. Had not thought of that. Thanks.

[onenote]

45. actually, sorry but you're the one that's wrong

The entire reason that word "alien" was left out of the definition of unlawful enemy combatant was that such a designation cannot be reviewed and if alien was part of the definition than the issue of a person's citizenship would not be reviewable. By taking it out of the definition, the point was to ensure that while the designation as unlawful enemy combatant can't be challenged, the issue of whether the designee is a citizen, and therefore still entitled to habeas corpus and not subject to to the jurisdiction of the military commissions, would still be reviewable by the courts.

Thus, you are wrong when you state that you can't go to court to raise the issue of whehter or not you are a citizen. You clearly can.

[papau]

54. Again - how do you get to Court? - The law clear;y denies those accused

of a right to a path to a Court hearing.

Please reread the post and think.

Does a right exist if the law says you can be prevented from exercising that right?

[onenote]

55. it only denies them a "path" to a court hearing if you're an alien

Nothing prevents you from gettng a hearing to determine if you are in fact someone subject to the restriction.

The government took the positin that Padilla had no habeas rights. But he repeatedly got to court on the issue, winning sometimes and losing others. But he got to court.

Deciding things, including whether they have jurisdiction, is what courts do.

[papau]

57. Padilla had the good fortune of being known to be in gov control & filed

before this law.

If those about you know you are missing because the gov picked you up, they might file in court and a court might rule it has jurisdiction. This law says the court can't get you to come to court to hear the charges - that habeas idea. Military commissions have jurisdiction.

Of course we both know - I think - that the Constitution does not say the court system can review any law - as the courts below the USSC are a product of congress, Congress can deny those Courts the power to review any law it passes.

The USSC can assert it's right to review this law - and we will see if it wants to soon- and if it tosses this law.

But until then, since the USSC is not going to issue a ruling based on a letter from a citizen asserting their son is held by the government with out charge in an unknown area, there is no habeas right for US citizens.

And to argue otherwise is sophistry (as in specious reasoning, fallacy,fallacious/fraudulent arguments).

[elehhhhna]

70. Olbemann said it best, and chillingly:

"...And if you somehow think habeas corpus has not been suspended for American citizens but only for everybody else, ask yourself this: If you are pulled off the street tomorrow, and they call you an alien or an undocumented immigrant or an “unlawful enemy combatant”—exactly how are you going to convince them to give you a court hearing to prove you are not? Do you think this attorney general is going to help you?"

Full transcript here:
http://www.myleftwing.com/showDiary.do?diaryId=12391

[onenote]

71. the sophistry is all yours

To the extent that your argument is that the government can pick someone up, hide them away and no one will know where they are or what happened to them and thus no one will be in a position to seek relief on their behalf (the apparent argument you make to distinguish Padilla), that argument proves nothing about the MCA. You could make the same argument no matter what the law said. The issue isn't whether if a tree falls in a forest and no one hears it what happens, its what does this particular law permit/prohibit.

And it, like the state of the law pre-MCA, doesn't prevent someone from going to court. Anyone can go to court. The issue is whether the court has jurisdiction to hear someone who comes before them. And nothing in the MCA prevents a court from ajudicating the threshhold question of whether the person appearing (through counsel or "next friend") has the right to seek a writ of habeas corpus because they are a citizen or is denied that right (because they are not). The issue of whether they are or are not an unlawful enemy combatant is generally irrelevant (although not completely since the court could in theory be presented with the question of whehter the particular person incarcerated is in fact the person designated by the govt as an unlawful enemy combatant -- ie. whether there has been a case of mistaken identity).

[alfredo]

38. Did Patriot Act II give the chimp power to yank a person's

citizenship, or is that only naturalized citizens?

[onenote]

46. No -- the supposed "expatriation" provision was never even introduced

It was part of a draft bill that was leaked. It was never introduced and it never became law.

[alfredo]

75. Good.

[BelgianMadCow]

12. Good that you bring that up, but

948c says that alien enemy combatants are to be tried via the military commissions. It does NOT say citizens are excluded from them. And neither does Bruce Ackerman think so :
http://www.latimes.com/news/opinion/la-oe-ackerman28sep28,0,619852.story?coll=la-opinion-rightrail

[Hosnon]

16. 'Round and 'round we go Belgian, haha. I don't think I can start up again

in a new thread:)

[BelgianMadCow]

20. No no don't worry - I'm off for a couple hours sleep

:-)

[Bok_Tukalo]

21. If this is old ground being covered, I apologise

I was not a participant in other conversations.

[Hosnon]

27. Oh no problem...Belgian and I have been involved in this for a few hours.

I was really talking solely to him.

It's a great discussion.

[Bok_Tukalo]

19. From the article

<<After a federal appellate court upheld the president's extraordinary action, the Supreme Court refused to hear the case, handing the administration's lawyers a terrible precedent.>>

The Supreme Court refused to hear the case because the Justice Dept charged Padilla, not because it agreed with the lower court's decision and I think Padilla was charged because the Executive Branch was not confident that it would win (Hamdi v Rumsfeld as precedent).


"In light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again ..... That concern, however, can be addressed if the necessity arises."

Justice Kennedy

[onenote]

49. flawed legal analysis

In construing statutory language, courts typically follow the maxim: Expressio unius est exclusio alterius (The expression of one thing is the exclusion of another). What this means is that where a statute contains an express reference to one thing, other things not expressly stated are assumed not to be covered by the statute.

In this case, the statute states that alien unlawful enemy combatants are subject to the jurisdiction of the military commissions. The ordinary and correct reading of the law's silence with respect to non-aliens (i.e. citizens) is that they are not subject to the jurisdiction of the court. Jurisdiction does not materialize out of thin air, it needs a statutory basis and none can be found in the law with respect to military commissions and citizens.

Ackerman's "analysis" simply assumes a result without offering any explanation of the statutory language. Interestingly, however, he does concede another point that has been hotly debated here at DU: namely, that the restrictions on habeas corpus only apply to aliens.

[papau]

59. We all conceed the lack of the word "citizen" in the death of habeas sec.

But when did defacto results lose their meaning?

If habeas exists for citizens in the hands of the gov as enemy combatants , how do they excerise that right when non-combatants are denied access to the courts?

[onenote]

72. you could ask the same thing no matter what the law says

The only way a person is 'de facto' barred from getting to court is if no one knows of his detention. Fine. But as a practical matter, the same "de facto" issue would arise no matter what the law says or if there was no law at all. Here's my challenge to you: describe statutory language that would prevent the de facto circumstance you propose from arising.

[papau]

77. Proposed language: " Anyone held as a enemy combatant has a right

to challenge that status in a US Court"

You can not deny a citizen habeas based on the President calling him a name like "enemy combatant". If you do all rights disappear.

This law attempts to deny habeas to enemy combatants - be they citizens or not. The result is the death of habeas.

Statutory language that would prevent the de facto circumstance that kills habeas is impossible without removing the "non-combatants can not get to court" language. Even saying "alien non-combatants can not get to court" does not do the job because again there is an assertion - that you are not a citizen - that you can not challenge in Court because you have been labeled both "alien" and "enemy combatant". You can never get a chance to prove you are a citizen.

[Justice Is Comin]

8. Yeah but not for long.

[JCMach1]

14. Absolutely unconstitutional as written-- no gray are there!

If there is a shread of jurisprudence left in the Supreme Court, this should go down 9 to nothing.

[Hosnon]

13. Yes, some provisions apply to U.S. citizens. However, the habeas corpus

provision does not.

[papau]

22. Sorry - but wrong - as explained below - once accused as an alien or

enemy combatant, citizen or not - you have no rights - because habeas corpus does not apply to you (the laws restriction to aliens in the wording in the repleal of habeas corpus is a con job - please read below).

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=109&topic_id=27777&mesg_id=27777

There is the obvious fact that if a cop grabs you from your home and says your an enemy alien, and if enemy aliens can not go to court, that means you can not go to court to show that you are a citizen, because you now have all the rights of a immigrants and non-citizens - namely - no rights. Without habeas corpus, there are no other rights.

There is also in the law a neat way for the government to avoid all those trial rights that are in all the other sections. Since you get those trial rights only after the government declares you to be an enemy combatant via a combatant status review tribunal (CSRT), and since there is no statutory requirement that the government ever utilize a CSRT, you are in jail forever if the government wants you to be there. You have no access to a civilian court because the government determined you were an unlawful enemy combatant by some means other than using a CSRT.

If that is not a de facto suspension of the privilege of the writ of habeas corpus, then logic has been removed from legal rulings. But do not hold your breath waiting for our right wing controlled United States Supreme Court that broke the law to put Bush in the Presidency to see it that way and rule the Military Commission Act unconstitutional. And don't hold your breath waiting to hear about violations of the provisions of the Military Commission Act, since no one labeled an alien can sue to enforce these provisions, and thus violations will never come to light.

If you like black humor and irony, you can look forward to Supreme Court Justice Scalia (who wrote in the Hamdan case that "the very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.") voting to uphold the Military Commission Act and its ending of habeas corpus. If you want to see that some folks actually noticed the death of the American Democracy, I recommend Keith Olbermann's commentary, with Professor Jonathan Turley (http://www.youtube.com/watch?v=igycXBseoAg ) and perhaps more entertaining to those who can handle f-bomb swears, "Freedom is Under Attack" -- Rollins (http://www.youtube.com/watch?v=6waWS0Y3Ubc ).

Of course the usual suspects tried to protect our Constitution from Bush's planned destruction of our freedoms:

"With his signature, President Bush enacts a law that is both unconstitutional and un-American," said American Civil Liberties Union Executive Director Anthony Romero. "The president can now - with the approval of Congress - indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions. http://www.aclu.org/safefree/detention/27091prs20061017...

Sen. Russ Feingold, "The legislation signed by the President today violates basic principles and values of our constitutional system of government. It allows the government to seize individuals on American soil and detain them indefinitely with no opportunity to challenge their detention in court. And the new law would permit an individual to be convicted on the basis of coerced testimony and even allow someone convicted under these rules to be put to death." http://feingold.senate.gov/~feingold/statements/06/10/20061017.htm

[Hosnon]

25. The statute does not legally deny habeas to U.S. citizens.

Whether or not it matters in practice is a different issue.

I and a few others tonight have simply been trying to stress one point: The MCA did not legally deny habeas corpus to U.S. citizens.

[papau]

56. A right you can not excercise does not exit. The law is a defacto end to

habeas corpus for U.S. citizens.

Why focus on the fact that the law includes a con job section that says no habeas for Aliens, perhaps implying habeas exists for U.S. citizens to those who do not realize the law affirms no such right, when any reading of the law shows that a US Citizen can be denied the ability to exercise their "right" to habeas?

Why keep the GOP con job alive?

What law school now teaches that placing impossible to get around walls around a "right" preventing you from getting to Court to exercise a "right", is a "different issue" from whether or not a "right" exists?

I thought the law schools still taught the meaning of sophistry (as in specious reasoning, fallacy,fallacious/fraudulent arguments).

[papau]

66. Just for the record - I agree citizens still have habeas -they just can' t

use it.

A right you can not use - must be a GOP concept.

[mmonk]

18. I'll post this in this thread also.

http://ccr-ny.org/v2/legal/Docs/MCA_Signing_Briefing_Paper.pdf


From this thread:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x2434725

[BelgianMadCow]

24. Good! Someone should crosslink the relevant threads

but I'm off :hi:

[papau]

28. The analysis misses the fact that citizens are defacto stripped of the

right of habeas ccrpus.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=109&topic_id=27777&mesg_id=27777


There is the obvious fact that if a cop grabs you from your home and says your an enemy alien, and if enemy aliens can not go to court, that means you can not go to court to show that you are a citizen, because you now have all the rights of a immigrants and non-citizens - namely - no rights. Without habeas corpus, there are no other rights.

There is also in the law a neat way for the government to avoid all those trial rights that are in all the other sections. Since you get those trial rights only after the government declares you to be an enemy combatant via a combatant status review tribunal (CSRT), and since there is no statutory requirement that the government ever utilize a CSRT, you are in jail forever if the government wants you to be there. You have no access to a civilian court because the government determined you were an unlawful enemy combatant by some means other than using a CSRT.

If that is not a de facto suspension of the privilege of the writ of habeas corpus, then logic has been removed from legal rulings. But do not hold your breath waiting for our right wing controlled United States Supreme Court that broke the law to put Bush in the Presidency to see it that way and rule the Military Commission Act unconstitutional. And don't hold your breath waiting to hear about violations of the provisions of the Military Commission Act, since no one labeled an alien can sue to enforce these provisions, and thus violations will never come to light.

If you like black humor and irony, you can look forward to Supreme Court Justice Scalia (who wrote in the Hamdan case that "the very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.") voting to uphold the Military Commission Act and its ending of habeas corpus. If you want to see that some folks actually noticed the death of the American Democracy, I recommend Keith Olbermann's commentary, with Professor Jonathan Turley (http://www.youtube.com/watch?v=igycXBseoAg ) and perhaps more entertaining to those who can handle f-bomb swears, "Freedom is Under Attack" -- Rollins (http://www.youtube.com/watch?v=6waWS0Y3Ubc ).

Of course the usual suspects tried to protect our Constitution from Bush's planned destruction of our freedoms:

"With his signature, President Bush enacts a law that is both unconstitutional and un-American," said American Civil Liberties Union Executive Director Anthony Romero. "The president can now - with the approval of Congress - indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions. http://www.aclu.org/safefree/detention/27091prs20061017...

Sen. Russ Feingold, "The legislation signed by the President today violates basic principles and values of our constitutional system of government. It allows the government to seize individuals on American soil and detain them indefinitely with no opportunity to challenge their detention in court. And the new law would permit an individual to be convicted on the basis of coerced testimony and even allow someone convicted under these rules to be put to death." http://feingold.senate.gov/~feingold/statements/06/10/20061017.htm

[onenote]

50. again, you're wrong about this: you can raise your citizenship

if you prove you're a citizen, you can proceed with your petition for habeas corpus. If you can't, then your petition will be dismissed. Its really not that complicated.

[papau]

58. Again you are wrong - you can not get to court to prove your citizenship

You never address the snatched off the street by "unknown folks" problem.

If those about you know you are missing because the gov picked you up, they might file in court, show documents proving your citizenship, and a court might rule it has jurisdiction.

But even for citizens this law says the court can't get you to come to court to hear the charges - that habeas idea. Military commissions have jurisdiction.

Again - the Constitution does not say the court system can review any law - as the courts below the USSC are a product of congress, Congress can deny those Courts the power to review any law it passes - and Military commissions have jurisdiction if you are accused as an enemy combatant - I seem to speaking to those that can not hear or do not want to hear.

Again - The USSC can assert it's right to review this law - and we will see if it wants to soon- and if it tosses this law. But until then, since the USSC is not going to issue a ruling based on a letter from a citizen asserting their son is held by the government with out charge in an unknown area, there is no habeas right for US citizens.

And to argue otherwise is sophistry (as in specious reasoning, fallacy,fallacious/fraudulent arguments).

[onenote]

73. You're misreading the law

I've addressed your "if a tree falls in a forest and no one hears it" argument in other posts, and again my response is that the same issue has existed for the entire history of our country: that is, if in 1962, a southern sherrif had secretly detained an African-American who happened into that sherrif's jurisdiction, and no one knew the whereabouts or what had happened to the detainee, the detainee would have no more de facto right to habeas corpus than a citizen detained as a unlawful enemy combatant today. In other words, your argument has nothing to do with the terms of the MCA.

As for your stastement that only the military commissions have jurisdiction in the case of a citizen detained as an unlawful enemy combatant, that is demonstrably false. The law plainly states that the jurisdiction of the MCA extends to ALIEN unlawful enemy combatants. The law blocks a person who has been designated as an unlawful enemy combatant from going to court to challenge that designation (nor can the military tribunal review that designation). However, separate and apart from the designation issue is the issue of whether the person is a citizen (and, theoretically, there could be a mistaken identity issue: whehter the person detained is in fact the same person that has been designated as an unlawful enemy combatant). Apart from your no one knows where the detainee argument, there is nothing that prevents those issues from being presented to a court and a court resolving them.

[madmusic]

43. Thank you!

What New Powers does the Military Commissions Act give to the President? What
other objectionable provisions does it include?
• It authorizes the suspension of habeas corpus for non-citizens, including legal
permanent residents, in U.S. custody
• It authorizes the President to detain anyone, including U.S. citizens, without
charge by designating them enemy combatants or unlawful enemy combatants
• It authorizes the President to determine what constitutes torture.
• It authorizes the use of evidence obtained by coercion
• It authorizes the use of hearsay
• It authorizes retroactive immunity for U.S military and intelligence officials for
abuses that occurred at sites such as, Abu Ghraib, Guantánamo, Bagram and
secret CIA facilities.
• The definitions of rape and sexual assault are narrower than under international
law and have higher thresholds for proof.

[mmonk]

78. You're welcome. Thanks for posting some of the info.

I got in a hurry (I was a little lazy I guess), so I just did the links.

[hootinholler]

29. Yes, but you still have Habeas rights.

Habeas is only breached for alien unlawful ememy combatants. Citizens go to court, aliens go to tribunal.

The question is how long does it take to get citizenship recognized.

-Hoot

[BelgianMadCow]

30. exactly

hence my earlier droppig advice :
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=2436582&mesg_id=2436582

[truebrit71]

31. If the citizen has been deemed to be an unlawful enemy combatant...

..habeas corpus has most DEFINITELY been removed.

In other words, in order to prevent a US citizen from claiming his/her Habeas rights they would simply have to be deemed an unlawful enemy combatant and any further claims to Habeas simply disappear...How does that happen? Simple, the pretzeldent nods his head and ZAP, your rights go poof...

[Hosnon]

33. The statute does not say that. Perhaps it has been denied in practice, to

some degree, but legally, a U.S. citizen that is deemed to be an unlawful enemy combatant is not denied habeas corpus.

[truebrit71]

34. I'm sorry but it absolutley does...

..as soon as you are deemed an unlawful enemy combatant you are subject to being tried just as if you were a non-citizen...secret evidence, no access to the courts etc etc...

[Hosnon]

35. It does not. The habeas corpus denial only applies to aliens who are

enemy combatants.

Check out my analysis here:

Official Military Commissions Act of 2006 and Habeas Corpus Thread

Forgive me but I am getting extremely tired and want to make sure I have a clear mind when discussing this topic. I'll check back in tomorrow.

[truebrit71]

39. I'm sorry but you are wrong. Nowhere in the MCA does it differentiate..

..between aliens and citizens. The over-riding, most sinister part of the document I highlighted in the OP. The 'alien' definition is a separate part entirely. If you are deemed to be an unlawful enemy combatant, you have no habeas corpus rights at all.

[mmonk]

37. Isn't detained without charge the same thing

but just not using the words of being denied habeus corpus? It's a end run around the writ of habeas corpus.

[truebrit71]

40. Exactly.

.

[madmusic]

47. How can you say that with a straight face?

The Bush administration's torture of U.S. citizen Jose Padilla

(updated below)

The Bush administration's May, 2002 lawless detention of U.S. citizen Jose Padilla -- on U.S. soil -- was, as I recounted in my book, the first incident which really prompted me to begin concluding that things were going terribly awry in our country. The administration declared Padilla an "enemy combatant," put him in a military prison, and refused to charge him with any crime or even allow him access to a lawyer or anyone else. He stayed in a black hole, kept by his own government, for the next three-a-half-years with no charges of any kind ever asserted against him and with the administration insisting on the right to detain him (and any other American citizen) indefinitely -- all based solely on the secret, unchallengeable say-so of the President that he was an "enemy combatant."

http://glenngreenwald.blogspot.com/2006/10/bush-administrations-torture-of-us.html

Why would anyone, DUer, freeper, whatever, give these pigs the benefit of the doubt?

[papau]

60. How do they get to court - jurisdiction is given to military commissions.

n/t

[onenote]

51. most definitiely wrong

As posted elsewhere on this thread: you only are denied habeas corpus if you are an alien. If being an alien was part of the definition of unlawful enemy combatant, you'd be right. But its not part of the definition. Indeed, the very reason its not part of the definition was to ensure that the courts can still review whether someone who has been designated an unlawful enemy combatant (a designation that is not reviewable) is citizen.

[papau]

61. What requires the government to tell anyone so and so has been

picked up as a enemy combatant - last I looked there was nothing - for the reason that "national security" allowed secrets at the descretion of the president.

[mmonk]

32. But any US citizen that the president decides is

an unlawful enemy combatant can be detained without charge. So if they are detained as unlawful enemy combatants, do they get a phone call to a lawyer in order to file a habeas corpus brief?

[truebrit71]

36. Nope.And that is where the confusion comes in.

There aren't TWO sets of unlawful enemy combatants, one that really ARE unlawful enemy combatants, and one that used to be US citizens but have been deemed by the pretzeldent to be unlawful enemy combatants.

Once you are classified as an unlawful enemy combatant your access to the courts disappears completely, you can be detained, indefinitely, without charge, and tried in secret with secret evidence that you cannot see, and therefore cannot challenge.

[papau]

62. Amen- NO HABEAS-finally some who has read the law - thank you for posting

the defacto loss is obvious unless one wants to pretend otherwise.

But perhaps the USSC will find 5 non traitors voting to overturn.

[treestar]

41. Who cares?

What kind of elitist thinks it's OK, so long as it does not apply to US citizens?

1. For the selfish elitists who think they are superior on ground of birth in the US, when they get the power over aliens, they will want it over you. The government will like that power, that is why the founders made the Constitution the way it is, they understood human nature and that a little power is addictive and leads to the desire for more, therefore, even if it now does not apply to you because you were born of the elite nobility (in the US) does not mean that isn't a big step towards applying it over you.

2. For those who are human and recognize human rights, you know that humans all deserve justice by right of birth, no matter where and that this is a travesty of justice even if it purportedly does not apply to those lucky enough to have happened to have been born in the US.

This is a non-issue. Just because it allegedly does not apply to citizens 1)does not make it right and 2)does not mean it won't be eventually applied to US citizens anyway.

the concept that there are people born so low they are not entitled to justice is barbaric, racist, medieval, elitist, and every other unamerican thing.

[onenote]

42. but only aliens are denied habeas corpus and only aliens are

subject to the jurisdiction of military commissions.

So,even if the law can be construed to allow a citizen to be designated an unlawful enemy combatant, that person would still have to be charged with a crime triable in an ordinary court of law and would have the ordinary protections (speedy trial, habeas corpus,etc) generally accorded to citizens accused of a crime.

[truebrit71]

44. Sorry but you are wrong.

Once you are labelled an unlawful enemy combatant habeas corpus, is gone.

[onenote]

52. sorry, but its you who are wrong.

explained above in any number of posts. Citizenship is separately reviewable.

I'll spell it out step by step.

Joe Citizen and Joe Alien are both designated as unlawful enemy combatants and detained. Just as in the case of Jose Padilla, a "next friend" files petitions for a writ of habeas corpus on behalf of each of them. The government moves to dismiss these petitions (as was the case with Padilla) on the grounds that the two Joes have been designated unlawful enemy combatants and thus have no habeas corpus rights. The "next friend" responds by producing evidence that Joe Citizen is a US citizen. The court then denies the government's motion to dismiss the petition and the writ of habeas corpus is considered. However, because the "next friend" cannot produce evidence of Joe Alien's citizenship, the court grants the government's motion and returns Joe Alien to the custody of the military.

That is exactly how it will work.

[papau]

64. Try again - Joe Citizen is snatched and gov says nothing - as in where

is this notice to "next friend" requirement in the law?

The names of those held - the 500 in US areas and 30,000 (some say 20,000) overseas - are not public - hell the locations/prisons are not all public. Many are held by foriegn governments at our behest.

Until now only one US citizen was known to be amoung them. And "next friend" habeas was possible, if known.

Jurisdiction is now given to military commissions. "next friend" habeas remains possible, if known. But right to stay secret about anything "enemy combatant" is in the law - and nothing moves to the military commission until named "enemy combatant" by the special pannel - if simply charged "enemy combatant" by some person, nothing moves to the military commission. And this applies to citizens.

Jailed forever - without charge - by whim of the President. That is the new right that defacto exists right along side habeas

No, habeas is not dead for US Citizens, it is just not possible to use that right.

[Stephanie]

53. Where are the RECOMMENDS?

This is exactly what we need people to be talking about.

[mmonk]

63. It's basically this:

The MCA doesn't use the words descibing the act concerning citizens as denying citizens the right of the writ of habeas corpus, but then says the president can name a citizen an unlawful enemy combatant and the president can detain that citizen without charge (which is saying they are denied habeas corpus without mentioning habeas corpus).

[papau]

65. Amen- NO HABEAS is the effect as you have noted. n/t

n/t

[magellan]

67. This is so stupid

The damn legislation is a monstrosity and a threat to everyone who finds themselves on the wrong side of Bush**'s bad temper and whim, and here we are (myself included) arguing whether US citizens still have the protection of habeas corpus.

It is MOOT.

BushCo will do what they like with you, legal or not, habeas or not.

If they decide to detain you, get comfy with the very real possibility of becoming a stateless non-entity with no access to any legal system. Hundreds of detainees face this fact every day.

If you DO get to file a petition, be prepared to find out that you've been classified an enemy combatant by Bush** according to the guidelines of the MCA, and the court has therefore ruled you have no rights under habeas.

Of course you will have to wait a while, in detention, for that ruling. This horror of a law will be wending its way through the courts for YEARS.

I'm sure common sense will prevail, one day. Hopefully it will come before they get away with EXECUTING too many people. (And no, that's not hyperbole or hysterics. Read the Act. Execution is mentioned as a remedy several times, and absent habeas they control the evidence.)

Finally, remember that at first the Jews trusted that the Nazis wouldn't dare do anything illegal to them either.