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Revision as of 19:52, 19 October 2006

Citizens or only Aliens?

Can somebody with some real legal training tell me if this applies only to aliens, or does this apply to citizens as well? Chris Gore 23:03, 12 October 2006 (UTC)

I have added two articles to the media section that address this question. One is by Jennifer Van Bergen who has practiced law and writes about human rights and constitutional law. She writes that the denial of habeus corpus only applies to non-citizens, but that the "unlawful enemy combatant" status can be applied to citizens, effectively denying them habeus corpus, as well. The second article is something I wrote (Much of my writing is about constitutional law, but I have no formal background in law.) that discusses the effects and meanings of denying habeus corpus to citizens. Brandon Batzloff 22:49, 14 October 2006 (UTC)

It appears that Mohammed Munaf, a US citizen, will likely be sentenced to death in Iraq because of the Military Commissions Act: An American Sentenced to Death in Iraq. I did not add this to the media section because the blog posting is not directly relevant to the Military Commissions Act. Brandon Batzloff 11:02, 15 October 2006 (UTC)

↑ Mohammed Munaf is being sentenced to death by Iraqi courts because he was captured in Iraq and turned over to Iraqi authorities, as he should be. It's completely unrealted to the Military Commissions Act. I also don't like the other names someone added to the Wiki and attributed them as examples that the act allows prosecution of American citizens -- they were prosecuted before this Act. Had the Act been in effect at the time of their capture, there never would have been a question on how to deal with them: they would have had to be turned over to the justice system rather than holding them for ages because no lawmakers could figure out what to do with them. User:TheCynic

I asked a lawyer about this to gain further clarification. Classification as an unlawful enemy combatant can result in indefinite detention for citizens, but not the suspension of habeus corpus. However, indefinite detention is still a violation of Civil Rights. Further, such imprisoned citizens can be tortured because MCA has redefined torture. It will be important to follow the cases of citizens arrested as enemy combatants in order to see if they simply disappear into the system or if they are held in the manner in which other prisoners are held (which is not to say that the Civil Rights of prisoners are respected). Brandon Batzloff 16:31, 16 October 2006 (UTC)

These seem to be the parts of the bill that raise the most questions for people (habeas/unlawful enemy combatant). I've added the relevant text from the bill, hoping that it will make the article's analysis more obvious. One possibility raised by some commentators about applying this to U.S. citizens is that a CSRT could (conceivably) declare a person not to be a citizen, thus making the person's conditions of detention unreviewable. I didn't add that to the article because it seems to me to be too speculative. IANAL, just a legal worker. ArielGlenn 17:09, 16 October 2006 (UTC)

Sec.7(a) of the Act amends the General-Section 2241 of title 28, United States code so that it reads: "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." - with "alien" previously defined as "a person who is not a citizen of the United States" So Ohnoitsjamie's revert on 16:29, October 17, 2006 is a righteous one. Of course, as in its other provisions, the Act doesn't explicitly preserve habeas for American citizens either. In any case, as the Padilla case demonstrates, if Bush wants you fucked, you are going to get fucked - whatever that "goddamn piece of paper" says. Ribonucleic 22:55, 17 October 2006 (UTC)

In fact, it explicitly says that American citizens can be declared unlawful enemy combatants - and once that happens, good luck in terms of bodily safety, habeas corpus or no. zafiroblue05 | Talk 23:23, 17 October 2006 (UTC)

This is accurate. The bill does explicitly state that anyone can be declared as an unlawful enemy combatant. At this point they can literally do anything to you, as habeas corpus is also easily circumvented in this case. 132.42.128.28 13:23, 18 October 2006 (UTC)

Umm, no it does not. Even this panty waist, with an appropriate last name of "Dorf" will go so far as to extend to "resident alien"

Under the terms of the MCA, then, the government could declare a permanent resident alien--including someone who has been residing lawfully in the United States for decades--to be an enemy combatant, and lock him up, potentially forever. That alien--who could be your neighbor--would never have an opportunity to challenge his detention or treatment in a U.S. court. Torturous Devastating Cudgel 18:37, 18 October 2006 (UTC)

I am a lawyer. While, admittedly, I haven't done any extensive research on the issue, I'd like to point out that the text of the law states that it's "Purpose" is to "establish procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission." Any Court interpreting this law would catch that word alien, and would not apply this law to a citizen. This law would also be unconstitutional, in violation of the Fifth Amendment, if applied to a citizen. However, the Fifth Amendment does not apply to aliens. See Johnson v. Eisentrager, 339 U.S. 763, 784. But, I'm inclined to agree that a citizen detained as an unlawful enemy combatant is probably completely screwed, regardless of what the law says. bagboy

That also means us, whether you born an american or not, you are concidered an enemy combatant. You will be locked up forever without proving your innocence. You will also be put to death by torture or beheading by guillotine.--68.154.20.29 19:45, 18 October 2006 (UTC)

Blockquoting

I usually always like blockquotes as opposed to direct quoting within paraphrased text, but if you want to go with it that's fine by me in this instance. Yours, Smeelgova 23:32, 29 September 2006 (UTC).

Per Misplaced Pages:Manual of Style#Long quotations, the blockquoting style is used for long quotations. What's "long" isn't precisely defined. One standard I remember seeing somewhere (possibly in the Bluebook, though I'm not sure) is to indent a quotation if it has two or more sentences or 50 or more words. I've sometimes indented things that fell short of those guidelines. Here, though, the specific passages involved are very short and are fine as inline quotations. JamesMLane t c 08:05, 30 September 2006 (UTC)

Sure thing, thanks for the iteration, didn't know about all that policy stuff. Yours, Smeelgova 21:23, 30 September 2006 (UTC).

-I think the bill was just passed in the house and senate, and now just needs bush's signature http://uspolitics.about.com/od/antiterrorism/a/HR6166.htm

- As I understand it Specter did vote for the habeas corpus amendment but also voted for the bill even though his amendment had failed. (In fact, Senate voting records confirm this.) I suggest to strike out -quote Specter voted against his own amendment -unquote

Legal refs

Sorry to quote a legal blog but there aren't going to be law review articles on the bill yet. I suppose if op-eds in Jurist are ok, then references to Marty Lederman's analysis are good enough. The references to the bill sections can all be cleaned up when it is passed (we can reference 10 USC 47A, section 948 etc). ArielGlenn 17:09, 16 October 2006 (UTC)

Dear fellow editors: I have added the full citation to the Act. The article needs to distinguish between Act sections and Code sections enacted by the Act. I'll add the details slowly bit by bit. Also, I'm not providing links to the Cornell University Law School web site for the Code cites, as the provisions probably won't be up on that site for awhile anyway. Yours, Famspear 21:02, 18 October 2006 (UTC)

OK, I've converted all the Code cites unless I missed one. The article now differentiates the slip law-session law cites (such as Act section 5) from the Code cites (basically, the sections in the "900" series of numbering). I realize this doesn't mean much to most non-lawyers, but this will really make the article easier to use, trust me.

There are some other codifications in the Act that somebody may want to talk about in the article later. Yours, Famspear 21:15, 18 October 2006 (UTC)

PS - I haven't studied the text of the Act in depth -- I'm just making technical changes. Also, I see now where some other editors are making corrections on the actual numberings of some of the cites themselves. This article is comin' along! Yours, Famspear 21:18, 18 October 2006 (UTC)

Are you saying that this was not vandalism? Torturous Devastating Cudgel 21:32, 18 October 2006 (UTC)

Hold on, I'll have to check. (And I haven't checked any of the actual section numbers for accuracy; I was just formatting, basically.) May take a while to check this, as I'm pulling off to work on something else. Yours, Famspear 21:35, 18 October 2006 (UTC)

OK, I'm back. Oh boy, looks like that edit by AequitasForAll was incorrect (maybe I'll just assume it was a good faith mistake and leave it at that), and was properly reverted (sigh). Yours, Famspear 21:43, 18 October 2006 (UTC)

"Competent tribunals" not defined

Secs.948i-948m define the military commissions that prosecute (when they feel like it) people designated "unlawful enemy combatants". They do not define the "competent tribunals" that make that designation. Ribonucleic 15:37, 18 October 2006 (UTC)

Umm, yeah it is: A "competent tribunal" is defined in the US Army field Manual. section 27-10, for the purpose of determining whether a person is or is not entitled to prisoner-of-war status and consists of a board of not less than three officers. Torturous Devastating Cudgel 19:09, 18 October 2006 (UTC)

The Army Field Manual, section 27-10, is not Sections 948i-m of the Act - which is what the text I removed from the article was claiming defined the tribunals. Ribonucleic 20:27, 18 October 2006 (UTC)

"Please don't bring up those annoying Geneva Conventions"

Sec.5a says: "No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action ..."

Alien vs. Citizen

Aren’t the two mutually exclusive? Commenting in the article that the Act does not specifically exclude American citizens is meaningless, because the Act clearly spells out who it applies to, non-citizens. Torturous Devastating Cudgel 18:03, 18 October 2006 (UTC)

• Yes, they are. But the Act only says what it can do to aliens. It does not exclude the possiblity of doing the same thing to citizens.

You are reading provisions into the law that do not exist.

Sec. 948c. Persons subject to military commissions

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

And that’s it, no one else is defined as being subject to the provisions of the Act.

By this logic, we could comment that since the law does not exclude prosecution of dogs in Chile for urinating on fire hydrants, that they too might fall under the domain of this law. Reading into the law what is not stated in its text is WP:NOR Torturous Devastating Cudgel 18:18, 18 October 2006 (UTC)

As the top of this very Discussion page suggests, people are wondering if American citizens can be subjected to these kangaroo courts - or only those scary brown people with the strange names. I see no reason why a "Scope of the Act" section can't address this curiosity - in an NPOV fashion, of course. Ribonucleic 18:47, 18 October 2006 (UTC)

People wonder alot of things, and in this instance, we have it defined in the law for us. The law has defined its jurisdiction within it, no legal scholar has, as of yet, claimed this could apply to a US citizen, ergo, this material should not be included in the article. Torturous Devastating Cudgel 19:11, 18 October 2006 (UTC)

Feel free to add any legal scholar who claims that it can't be applied to an American citizen to the Criticism section. Also, please refer them to the Padilla defense team. Ribonucleic 19:34, 18 October 2006 (UTC)

Asking me to prove a negative? It just don’t work that way. Your the one who wants to include it, you must provided a cite justifying it. I have already cited a legal scholar who says it will be applied to aliens and resident aliens (oh the humanity!) and never once did he say "citizen". Under the terms of the MCA, then, the government could declare a permanent resident alien--including someone who has been residing lawfully in the United States for decades--to be an enemy combatant, and lock him up, potentially forever. That alien--who could be your neighbor--would never have an opportunity to challenge his detention or treatment in a U.S. court. Torturous Devastating Cudgel 19:38, 18 October 2006 (UTC)

Thought I'd add my 2 cents. I am a lawyer (although not a military one), and definately not a scholar. I'd also be interested in a different legal opinion, here, but I just read the plain language of the act and don't see how it applies to citizens.

In the definitions section (948a) there are separate definitions for "alien" and "unlawful enemy combatant." Since courts look to the specifics in a bill to trump the general, it's clear that the terms are mutually exclusinve - one can be an "unlawful enemy combatant" even if a citizen.

The problem, however, is that under the jurisdiction sections of 948c and 948d, on "alien unlawful enemy combatants" are subject to the act. 948c provides that alien unlawful enemy combatants are subject to "trial" by military commission/ 948d, while allowing the determination of unlawful enemy combatant status to be made by the military commission - and not subject to review (amazing!) - still provides that jurisdiction is only over "alien unlawful enemy combatants." Also, the habeas corpus denial, by definition in the act (Section 7) also only applies to "aliens."

Now - while I don't disagree with a previous poster that I wouldn't put it past the Bushies to stuff folks away in Gitmo regardless, I just don't see anything in this act that allows it. I'd love to see someone show me how I'm wrong, so I could become even more paranoid. One last thought - I suppose the gov. could try to show that, based upon a person's acts, he had willfully given up citizenship and therefore had de facto become an "alien" - and that would be the trick. Again, I wouldn't put anything past them.

Original Research in Article

From WP:NOR “Articles may not contain any unpublished arguments, ideas, data, or theories; or any unpublished analysis or synthesis of published arguments, ideas, data, or theories that serves to advance a position.”

Namely, the inclusion of a section entitled “major provisions” is OR. Why are these provisions major? Who decided that they are major? Since there is no section in the text of the law, why are these specificly cited as “major provisions”. Sources need to be added to these, preferably by some mainstream legal authority on why these cited provision are an more notable than the hundreds of other provision s in the law. Torturous Devastating Cudgel 19:47, 18 October 2006 (UTC)

• Fair enough. I've removed "Major". Wasn't mine to begin with. Ribonucleic 19:55, 18 October 2006 (UTC)

Major or minor, still does not matter. Why is one section 949c.(b)(3)(D) in the article, but not 949c.(b)(3)(B)? Are we trying to draw the reader to a conclusion, and if not, why are we not replicating the Act in its entirety? I am removing the whole section, until we have some noteworthy legal commentary on the specific sections, otherwise its inclusion is POV and prejudicial. Torturous Devastating Cudgel 20:09, 18 October 2006 (UTC)

Those are the facts of the law, neutrally stated, each and every one documented. Don't blame me if they look bad. If NPOV is your real concern here, I respectfully suggest that you add to balance out what is there - rather than make a large, unilateral deletion. Ribonucleic 20:20, 18 October 2006 (UTC)

Neutrally sated, but not neutrally presented. And how do I balance it? Do I simple cut and past the whole act? Since you have deemed to necessary to unilaterally decide what has gone in, regardless of notability, it’s a case of NPOV and OR. Torturous Devastating Cudgel 20:30, 18 October 2006 (UTC)

You could address your OR concerns by finding and quoting media articles commenting on the "novel" aspects of the Act - i.e. hearsay evidence, torture evidence, secret evidence, etc. That probably wouldn't take long. If your passion for eradicating OR isn't quite that motivating, you could leave the article as it is. Or, to get away from all this unilateralism, we could wait to see what other comments on the dispute appear here. But I spent a lot of time documenting all those neutrally stated facts that you found so prejudicially presented. So until there's some consensus, I'm going to strive to keep them in. Ribonucleic 20:57, 18 October 2006 (UTC)

Well, feel free to do so, but lets just leave the tag be for a while. Torturous Devastating Cudgel 21:31, 18 October 2006 (UTC)

Who's the enemy combatant?

The definition does not say you're the Bad Guy "if a tribunal finds that you materially supported..." It says you're the Bad Guy if you: 1) materially supported, or 2) a tribunal says you are. It says nothing about what, if anything, the tribunal would have to decide before saying so. Ribonucleic 20:01, 18 October 2006 (UTC)

What do you know, it looks like it does! Torturous Devastating Cudgel 20:36, 18 October 2006 (UTC)

Section 10 of the Act simply amends the wording of the Detainee Act. It does not say it is binding (or even a handy reference) for a tribunal finding of Bad Guy status under section ii of the definition. Feel free to try again. Ribonucleic 20:39, 18 October 2006 (UTC)

Read the Detainee Act, It has been amended, and I provided a link. Torturous Devastating Cudgel 20:51, 18 October 2006 (UTC)

I checked your link, but I couldn't make sense of it. In any case, the point of your earlier gloating - as I understood it - was that the MCA does in fact define how you can get disappeared under part ii. It does not do so by referring to any such definition in the Detainee Act - at least not in Section 10 as you stated in the article before I removed it as unsupported. And the references to the Detainee Act in section 8, as best I can tell, only appear to be finessing the torture specifics. They shed no light on how the tribunal decides you ought to be tortured in the first place. Ribonucleic 21:08, 18 October 2006 (UTC)

“How you see it” is not relevant to the content of the article. Only sourced information please. I added the briefing from Wolfowitz on this issue, instructing the set up of the Combatant Status Review Tribunal. . - Torturous Devastating Cudgel 21:13, 18 October 2006 (UTC)

Hip Hip Hooray!

Let us all celebrate in joy the marvelous step the greatest nation of the entire planet - nay, 'entire galaxy!' - took in the direction of freedom and democracy!201.19.185.68 00:25, 19 October 2006 (UTC)

Tell Osama hi when you see him troll boy. Torturous Devastating Cudgel 01:32, 19 October 2006 (UTC)

TDC, just a reminder that the Discussion area is for debating the editing of the article - not for feeding the trolls, especially in their own moronic register. However, this comment of yours did remove any last lingering doubt I had about the sincerity of your previous "OR" deletions - so I can't complain. Ribonucleic 15:44, 19 October 2006 (UTC)

If I want to feed some Brazilian troll, that’s my prerogative. And while you may doubt the sincerity of my NOR complaint, I see that you have not doubted the merit of it. Torturous Devastating Cudgel 16:52, 19 October 2006 (UTC)

Yes, violating the stated guidelines for use of the Talk page is indeed your prerogative - as I suppose it was for the troll. Congratulations on having lowered yourself to his level. And I do doubt the merit of your OR tag - but I consider it a reasonable expression of your disagreement with the section, whereas I found your previous wholesale deletion unreasonable. Ribonucleic 17:51, 19 October 2006 (UTC)

Evidence admissible

For my fellow editors' discussion, see the following material in the text:

Based on his findings, the judge may introduce hearsay evidence , evidence obtained without a search warrant , evidence obtained when the degree of coercion is disputed , or classified evidence not made available to the defense .

I would just point out that perhaps except for the last item, classified evidence not made available to the defense, the listed items would also be admissible in a "regular" Federal court in criminal or civil proceedings, especially hearsay and evidence obtained without a search warrant. The article as currently written might be a bit misleading by not pointing that out. However, for now I'm just leaving this here for your discussion. Yours, Famspear 22:45, 18 October 2006 (UTC)

PS: Just to be clear, the judge makes the decision, based on the particulars of each offered piece of evidence and the law applicable thereto. Just because something is hearsay, or just because a particular piece of evidence was obtained without a warrant, does not necessarily mean that it's not admissible. Yours, Famspear 22:47, 18 October 2006 (UTC)

Just on heresay, what sec. 949a(b)(2)(E)(i) actually says is "Except as provided in clause (ii), hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission..." I haven't looked into the provisions on improperly obtained evidence yet. Daniel 10:34, 19 October 2006 (UTC)

Jurisdiction of commission with respect to U.S. citizens

I note that there seems to be some discussion as to whether the Act would cover actions against U.S. citizens. I don't know the answer. Under ordinary rules of Federal court jurisdiction and statutory construction, this Act would not appear to apply to someone who is not an alien. However, there might be some exception to the ordinary rules, who knows. Stay tuned. Yours, Famspear 23:13, 18 October 2006 (UTC)

Why doesn't someone in the press ask Bush if the Act applies to US citizens. After all, he signed it.Mikekopac 16:26, 19 October 2006 (UTC)

As far as I can tell, the law explicity singles out non-citizens. Torturous Devastating Cudgel 16:53, 19 October 2006 (UTC)

Actually, as mentioned above, the law does limit the procedures (Military Commissions in lieu of Habeas Corpus) to alien unlawful enemy combatants, but the law does involve American citizens, insofar as section 948a provides a definition for American citizens as unlawful enemy combatants.

It's incorrect to state the law explicitly singles out citizens (not 'non-citizens' as you state). -- User:RyanFreisling @ 17:03, 19 October 2006 (UTC)

Actually the Act covers only alien unlawful enemy combatants. You see, in English there are things called adjectives. Adjectives are a part of speech which modifies a noun, in this case unlawful enemy combatant, and may describe it or make its meaning more specific.

Sec. 948c. Persons subject to military commissions

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

Sec. 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.

See, in both these sections on persons subject to military commissions as well as the jurisdiction of said commissions, the term unlawful enemy combatant is preceded by the adjective alien, meaning that both the persons subject as well as the jurisidciont of the act are confided to aliens. Quite simple, really. Torturous Devastating Cudgel 18:41, 19 October 2006 (UTC)

I know what an adjective is, and how it works, thank you very much. Your incivility notwithstanding, you are merely repeating my observations and making a false conclusion. Section 948a clearly defines an unlawful enemy combatant in a way that does not exclude American citizens. The Act does involve American citizens. While the procedures denying 'alien unlawful enemy combatants' public trials do not affect American citizens (as I already said), 948a does. Honestly, I cannot determine if you are serious or in fact more interested in attacking others with your incivility. Please make an effort not to be so disrespectful of you fellow editors, as you have repeatedly done on this page.

I repeat... The Act does involve American citizens. Simple. -- User:RyanFreisling @ 19:28, 19 October 2006 (UTC)

Hey, I wasn’t being uncivil, just trying to break it down into its most simple rudimentary form. And I will repeat, find a legal source that agrees with this, you know, kind of like I did. Torturous Devastating Cudgel 19:40, 19 October 2006 (UTC)

You were indeed. Telling me the function of an adjective in English is derogatory (in that it insults one's intelligence). And as far as your comment about 'legal sources', your legal interpretation that the Act does not involve U.S. citizens is plainly OR. The onus is on you. -- User:RyanFreisling @ 19:43, 19 October 2006 (UTC)

Fortunately for me, I do not have to rely on my own interpretation of the law, as I have added sources, or did you not see those in the text of the article? Seems only one opinion here is unsourced, and as such is WP:NOR.

The Criticism section

TDC: Chris Floyd, in addition to being a published journalist, is a quite articulate (uncomfortably so for you, I imagine) proponent of his own criticism. As such, he is a primary source for the documenting of the claim made in the section. As such, I am restoring him. And while you may not feel that citizens are vulnerable to the Act, he, Greenwald, and many many others do. That is what the section is saying. Ribonucleic 18:06, 19 October 2006 (UTC)

With respect to WP:RS, this guy is a nobody. He writes for counterpunch and a bunch of left wing websites, none of which conform to RS, especially in this context:

Law

First of all, remember there are several legal traditions and that laws are only valid in their own jurisdiction. The opinion of local experts is therefore preferred, in general, to that of outside commentators, due to variances across areas of jurisdiction.

When discussing legal texts, it is in general better to quote from the text, or quote from reputable jurists, than to quote from newspaper reports, although newspaper reports in good newspapers are acceptable too. The journalist who wrote the paper may not be trained as a lawyer, although s/he may have access to a wider variety of legal experts than many lawyers do, so judge the quality of the report according to how well that journalist, or that newspaper, has covered legal issues in the past.

substitute another source if you like, but Floyd is a nobody. I have already cited a legal scholar who states that this will apply to aliens. Torturous Devastating Cudgel 18:26, 19 October 2006 (UTC)

Your opinion of Floyd is irrelevant. He is being referenced a primary source for the article's statement, "The Act has been denounced by critics who assert that its wording authorizes the permanent detention and torture (as defined by the Geneva Conventions) of anyone - including American citizens - based solely on the decision of the President." He is a critic, and that's what he is asserting. Feel free to put the opinion of your legal scholar in the "Scope of the Act" section. Ribonucleic 19:01, 19 October 2006 (UTC)

Oh no, you see, that’s where your wrong. While Floyd may well be one of the critics "denouncing", he is not a noteworthy critic, see above for what a noteworthy critic in this regard would be. Is he a "reputable jurists", no; is he a” journalist who has access to a wide variety of legal experts”, again, no (he does not seem to cite any of them in his crybaby story). Torturous Devastating Cudgel 19:19, 19 October 2006 (UTC)

If the article sentence said "noteworthy critic", this argument would have a leg to stand on. It doesn't, and you don't. Ribonucleic 19:32, 19 October 2006 (UTC)

The article said: The opinion of local experts is therefore preferred, in general, to that of outside commentators and also said When discussing legal texts, it is in general better to quote from the text, or quote from reputable jurists. Sorry, but thems the rules. Torturous Devastating Cudgel 19:38, 19 October 2006 (UTC)