A Declaration of War?

[quote]CappedAndPlanIt wrote:
Holy hair splitting batman, they used the word AURTHORIZATION instead of OPTION. Clearly, you’ve disproven my point.

Let me ask again, in a way that shitheads cant split hairs about:

“SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.

(1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”

…so the REQUIREMENT does not extend.

Thats a bit different than “the AUTHORITY does not extend”, isn’t it? \

Oh, right, but its so clearly defined: “A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

Clearly define “substantially supported” in a way that precludes an innocent person from being detained.
Clearly define “belligerent act” in a way that precludes an innocent person from being detained.
Clearly define “associated forces”…

Clearly defined my ass.[/quote]

I would not know how clearly defined your ass may be; that sorry task I leave to others.
But “shitheads?” Oh, come now. I have been called worse, and by better arguers, too.

The word “authority” here sanctions, by Congress, the Supreme Court’s ruling on Hamdi, following ex parte Quirin. The military can detain belligerents, taken abroad, without mandatory recourse to civilian courts. You will notice, however, that it is stipulated that the military may release the subject to a civilian court. (And therefore, attorney and civilian courts will be able to force the transfer of suspects as well.)

There is no suspension of habeas corpus in this bill.

IF you ask my opinion, yes, the bill is simply stupid. If the Supreme Court has ruled, why does the “authority” need to be reiterated in a funding bill for the Defense Department. Oh, yes, to further justify military actions against spies and saboteurs? These are matters best left for civilian authorities and courts. I do not want the military–which is untrained in police matters generally–to serve as policeman and judges within the US.

So I think it is a stupid part of the bill, but not, as hysterics would have it, some violation of the Constitution or the Bill of Rights. This hysteria is being used for political purposes, and not as a reasoned attack on stupidity. (Shame on you, Carl Levin, liberal D-MI.)

You may choose to disagree, of course, but I would not call you a “shithead,” even if you cannot find your argument in the text of the matter at hand.

You’re right, Skeptix. I shouldn’t have used the term shithead. It was childish of me, and I sincerely apologize.

Here is the main issue, as far as I can see it:

If this bill is passed into law, could the American government or military detain innocent American citizens under circumstances they could not have before the law was passed?

[quote]CappedAndPlanIt wrote:
You’re right, Skeptix. I shouldn’t have used the term shithead. It was childish of me, and I sincerely apologize.[/quote]

Good man!

See, two people can seem to be in disagreement, but the argument leads to an agreement.
Thunderbolt is not voicing an opinion on the value or sobriety or correctness of this bill; he is expressing how words in law are defined and redefined; the burden of the courts is to find the intent of Congress. In this case, the intent is fairly clear, but it is the execution of the words that is in doubt.

[quote]CappedAndPlanIt wrote:
Here is the main issue, as far as I can see it:

If this bill is passed into law, could the American government or military detain innocent American citizens under circumstances they could not have before the law was passed?[/quote]

Sec 2d.

[quote]DrSkeptix wrote:

[quote]CappedAndPlanIt wrote:
Here is the main issue, as far as I can see it:

If this bill is passed into law, could the American government or military detain innocent American citizens under circumstances they could not have before the law was passed?[/quote]

Sec 2d.[/quote]

“Not intended” is not the same as “cannot be used to”.

The law requires the Armed Forces to detain anyone captures under the relevant Authorization under military custody pending disposition under the law of war - we know it’s a requirement because the provisions says the Armed Forces “shall hold” - not “may hold”. See 1032(a)(1).

So, if someone is captured in the course of hostilities and is a “covered person”, the Armed Forces are required to hold them in accordance with the provision.

The requirement to detain doesn’t apply to US citizens. See 1032(b)(1). It is an exception to the rule that all individuals have to be held a certain way.

This idea that the law says “yeah, it says you’re not required to, but it doesn’t say that the government can’t hold US citizens if the government decides it wants to” is absolutely ludicrous - if this were true, then the law would give no discretion to the government to decide whether a non-US citizen gets detained in “military custody” (and thus the determination as to detention is not at all arbitrary), but with respect to US citizens, the government does have discretion to detain US citizens in “military custody” (and the determination is subject to being completely arbitrary)?

We give the government no arbitrary discretion with respect to non-US citizens, and we give the government carte blanche arbitrary discretion with respect to US citizens? On what kind of showing to a court? So there’s discretion under this theory, but the law clearly presumes that US citizens are not subject to this kind of holding - but, the law creates a “loophole” that allows the government to make this arbitrary determination that US citizens can, in fact, be detained, but sets up no procedure (and doesn’t even hint at one) where the government has to overcome this clear presumption that a US citizen is exempt from military custody in the law?

Beyond stupid. If this “option” theory about the law was legitimate, Section 1032(b)(1) would be rendered a nullity on its face. Why include a law that excepts US citizens from the requirement if US citizens aren’t actually excepted from the requirement? You wouldn’t.

Section 1032(a)(1) acts as a broad command to hold all captured individuals a certain way - Section 1032(b)(1) provides an exception to it. That’s it.

[quote]CappedAndPlanIt wrote:

“Not intended” is not the same as “cannot be used to”.[/quote]

Nope, you have it backwards, when it comes to judicial review.

And just because I am bored, I decided to read more the Act. The next Section 1032(c) actually outlines an “implementation” procedure. In this Section, there are provisions requiring a procedure (to be submitted by the President) for a determination as to who is a “covered person” under 1032(a)(2) and who is not.

Curiously, the implementation provisions requiring the establishment of some procedure to determine the rights of a captured individual under 1032(a) - as in, a non-US citizen - are explicit, but there is no implementation mandate to establish a procedure for a determination of a US citizen’s rights under 1032(b).

That’s right - despite the fact that the law clearly creates an exception for US citizens - and thus creates a clear presumption that the law doesn’t apply to US citizens - there’s no provision in the law for a determination of that exception…but there is one for non-US citizens.

So, under the scary “option” theory, non-US citizens get some ironclad due process, but US citizens get none of that. Idiotic.

Of course, there’s a reason this law needed no “implementation” procedures to determine the right of a US citizen. That procedure is already in place, thanks to Article III of the Constitution.

[quote]DrSkeptix wrote:

[quote]CappedAndPlanIt wrote:
Here is the main issue, as far as I can see it:

If this bill is passed into law, could the American government or military detain innocent American citizens under circumstances they could not have before the law was passed?[/quote]

Sec 2d.[/quote]

Tell that Orrin Hatch.

He wrote it and he disagrees.

[quote]thunderbolt23 wrote:
The law requires the Armed Forces to detain anyone captures under the relevant Authorization under military custody pending disposition under the law of war - we know it’s a requirement because the provisions says the Armed Forces “shall hold” - not “may hold”. See 1032(a)(1).

So, if someone is captured in the course of hostilities and is a “covered person”, the Armed Forces are required to hold them in accordance with the provision.

The requirement to detain doesn’t apply to US citizens. See 1032(b)(1). It is an exception to the rule that all individuals have to be held a certain way.

This idea that the law says “yeah, it says you’re not required to, but it doesn’t say that the government can’t hold US citizens if the government decides it wants to” is absolutely ludicrous - if this were true, then the law would give no discretion to the government to decide whether a non-US citizen gets detained in “military custody” (and thus the determination as to detention is not at all arbitrary), but with respect to US citizens, the government does have discretion to detain US citizens in “military custody” (and the determination is subject to being completely arbitrary)?

We give the government no arbitrary discretion with respect to non-US citizens, and we give the government carte blanche arbitrary discretion with respect to US citizens? On what kind of showing to a court? So there’s discretion under this theory, but the law clearly presumes that US citizens are not subject to this kind of holding - but, the law creates a “loophole” that allows the government to make this arbitrary determination that US citizens can, in fact, be detained, but sets up no procedure (and doesn’t even hint at one) where the government has to overcome this clear presumption that a US citizen is exempt from military custody in the law?

Beyond stupid. If this “option” theory about the law was legitimate, Section 1032(b)(1) would be rendered a nullity on its face. Why include a law that excepts US citizens from the requirement if US citizens aren’t actually excepted from the requirement? You wouldn’t.

Section 1032(a)(1) acts as a broad command to hold all captured individuals a certain way - Section 1032(b)(1) provides an exception to it. That’s it.[/quote]

The that Orrin Hatch who wrote the bill.

He disagrees.

[quote]orion wrote:

[quote]DrSkeptix wrote:

[quote]CappedAndPlanIt wrote:
Here is the main issue, as far as I can see it:

If this bill is passed into law, could the American government or military detain innocent American citizens under circumstances they could not have before the law was passed?[/quote]

Sec 2d.[/quote]

Tell that Orrin Hatch.

He wrote it and he disagrees. [/quote]
And your source is…?

[quote]orion wrote:

The that Orrin Hatch who wrote the bill.

He disagrees. [/quote]

Really? Orrin Hatch wrote the bill?

[quote]DrSkeptix wrote:

[quote]orion wrote:

[quote]DrSkeptix wrote:

[quote]CappedAndPlanIt wrote:
Here is the main issue, as far as I can see it:

If this bill is passed into law, could the American government or military detain innocent American citizens under circumstances they could not have before the law was passed?[/quote]

Sec 2d.[/quote]

Tell that Orrin Hatch.

He wrote it and he disagrees. [/quote]
And your source is…?[/quote]

I believe he quoted an interview from hatch on the first page as support to his position

[quote]DrSkeptix wrote:

IF you ask my opinion, yes, the bill is simply stupid. If the Supreme Court has ruled, why does the “authority” need to be reiterated in a funding bill for the Defense Department. Oh, yes, to further justify military actions against spies and saboteurs? These are matters best left for civilian authorities and courts. I do not want the military–which is untrained in police matters generally–to serve as policeman and judges within the US.

[/quote]

I agree that it shouldn’t be tacked onto a defense funding bill. Not sure about your assessment of the Bill being used to justifying “military actions against spies and saboteurs.”

This is of relevance:

Bit of background not in wikipedia:

Wilson’s much maligned Espionage Act of 1917 was prompted by the finding of documents from the attache to the German embassy that outlined:

‘a sweeping secret campaign, linked to high-ranking German officials, of espionage, sabotage, and propaganda. There were plans to take over American newspapers, bankroll films, send hired lecturers on the Chautauqua circuit, and create pseudo-indigenous movements to agitate on behalf of pro-German policies. More disturbing were schemes to provoke strikes in armaments factories; to corner the supply of liquid chlorine, an ingredient in poison gas, in order to keep it from Allied hands; even to acquire the Wright Brothers’ Aeroplane Company and use its patents on Germany’s behalf. American officials also learned of sabotage plans hatched by a different German spy, Franz Rintelen von Kleist, who was plotting to destroy American munitions plants and blow up the Welland Canal, a Canadian waterway of vital importance to the United States. It was no wonder that Wilson wrote to his adviser Edward House that summer that the country was “honeycombed with German intrigue and infested with German spies.”’

[quote]Aragorn wrote:

I believe he quoted an interview from hatch on the first page as support to his position[/quote]

His link was some floor coverage of Lindsey Graham.

[quote]DrSkeptix wrote:

[quote]orion wrote:

[quote]DrSkeptix wrote:

[quote]CappedAndPlanIt wrote:
Here is the main issue, as far as I can see it:

If this bill is passed into law, could the American government or military detain innocent American citizens under circumstances they could not have before the law was passed?[/quote]

Sec 2d.[/quote]

Tell that Orrin Hatch.

He wrote it and he disagrees. [/quote]
And your source is…?[/quote]

Well, it has now been about 4 hours–during which time I was able to complete a tango lesson and a consultation in the ICU-- and orion hasn’t provided his source. I would be genuinely interested, since Hatch is a ranking member of Judiciary Committee, and Levin and McCain “wrote” the bill.

But, in his flurry of cut-and-paste lemming-hood, orion has offered no source. Can one blame THC and 2-carbon fragments wrestling for dominance of synapses?

Thunderbolt is correct: the C-Span fragment is Linsey Graham, unless Hatch has taken up the habit of wearing lovely A-line dresses for his public appearances.

But even this fragment is instructive: Graham cites the judgment in the Fourth Circuit Court on Jose Padilla , a case that was a true travesty. (Wiki it for all its mind-bending legal acrobatics.)
But Graham here is hoisted on his own petard: the current bill is crafted to limit the outrages of the Padilla case.

Back to the sandbox, orion. What is that crafty phrase you throw around?..“Thanks for playing.”

[quote]DrSkeptix wrote:
Graham cites the judgment in the Fourth Circuit Court on Jose Padilla , a case that was a true travesty.
[/quote]

Just read about it. Apart from the length of time taken I don’t see any travesty. Charges moved to a civilian court after much wrangling - convicted - prosecution appeals leniency of sentence - 11th circuit court agrees and orders new sentencing. Travesty? The only travesty is his charges were moved into a civilian court. As District Judge Marcia Cooke said, Padilla ‘trained to kill at an al Qaida camp.’ That would make him an unlawful combatant and therefore he should fall under the jurisdiction of a military tribunal ala AUMF and Ex parte Quirin.

[quote]SexMachine wrote:

[quote]DrSkeptix wrote:
Graham cites the judgment in the Fourth Circuit Court on Jose Padilla , a case that was a true travesty.
[/quote]

Just read about it. Apart from the length of time taken I don’t see any travesty. …[/quote]

I start with, “Justice delayed is justice denied.”
(Then consider pre-emptive transfer to civilian courts, etc.)

[quote]DrSkeptix wrote:

I start with, “Justice delayed is justice denied.”
[/quote]

A ready and apt quote I’ll give you that.

[quote]
(Then consider pre-emptive transfer to civilian courts, etc.)[/quote]

That would not be allowed. In terms of constitutional jurisprudence in wartime the Wilsonians must always prevail over the Jacksonites. After the war things will be different and we can all learn why John Yoo was wrong.