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The Constitutional Basis For The "Enemy Combatant" Designation?



whopkins@csd.uwm.edu (Alfred Einstead)
10/14/2004 9:54:56 PM


The key section that pertains to this matter is the 2nd paragraph
of Section 9 of Article I:
"The privilege of the writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may
require it."
Though it has not actually be advanced or argued as such in court
(as far as I'm aware), the theory underlying the current
administration's use of "enemy combatant" proceeds from the
identification of terrorists or potential terrorists as either
invaders (if foreign nationals) or rebels (if domestic). The
criteria that determine the applicability of the relevant
passage to this situation are:
(1) is there a likelihood that the person or people in question
actually have involvement in any of these activities
(2) do the activities in question constitute a threat to the
public safety of a sufficiently urgent nature to warrant the
designation "invasion" or "rebellion"
(3) is the need to protect the public safety with regard to
these actual or potential acts strong enough to warrant the
above-mentioned suspension of the writ of Habeas Corpus.
Question (3) is grounded in the question of how serious the
consequences of the actual or potential acts are. After seeing
the effects of 9/11, which but for good fortune could have killed
as many as 50,000 people, this question becomes all the more
important.
The conflict that needs to be decided upon is between this
section in the Constitution vs. Amendments IV and V.
 
 
Thomas Anantharaman
10/16/2004 4:58:36 PM


Alfred Einstead wrote:
The key section that pertains to this matter is the 2nd paragraph
of Section 9 of Article I:
"The privilege of the writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may
require it."
... the theory underlying the current
administration's use of "enemy combatant" ...
Is not based on Section 9, Article I. Rather the US Constitution
suspends the application of most civil rights to members of the US armed
forces. The US Supreme Court has argued it would be unfair to afford
enemy combatants more rights than US combatants, hence has ruled several
times that Habeas Corpus and other civil rights are never available to
members of US or foreign armed forces. However, lawful enemy combatants
are protected by various international treaties ratified by the US
Senate, while unlawful combatants are not.Nevertheless, the Bush
administration erred in claiming that the executive branch or a Military
Tribunal gets to decide who is an unlawful enemy combatant : the US
Supreme Court recently re-afirmed that only a US civil court can decide
if someone is an unlawful combatant.
 
 
Stan Brown
10/16/2004 4:58:55 PM


"Alfred Einstead" <whopkins@csd.uwm.edu> wrote in
misc.legal.moderated:
The key section that pertains to this matter is the 2nd paragraph
of Section 9 of Article I:
"The privilege of the writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may
require it."
That does not mean when the US invades another country, it means
when another country invades the US. That has not happened since the
War of 1812, I believe -- unless you count Japanese occupation of a
couple of Alaskan islands in WW2.
The conflict that needs to be decided upon is between this
section in the Constitution vs. Amendments IV and V.
There is no conflict: the amendments are part of the Constitution,
and in case of any inconsistency the later adopted amendment wins.
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com
 
 
whopkins@csd.uwm.edu (Alfred Einstead)
10/25/2004 1:06:40 PM


Stan Brown <the_stan_brown@fastmail.fm> wrote:
"Alfred Einstead" <whopkins@csd.uwm.edu> wrote:
That does not mean when the US invades another country, it means
when another country invades the US.
First of all, this has nothing to do with anything you're replying
to, so it's irrelevant. There's nothing in here:
(1) is there a likelihood that the person or people in question
actually have involvement in any of these activities
(2) do the activities in question constitute a threat to the
public safety of a sufficiently urgent nature to warrant the
designation "invasion" or "rebellion"
(3) is the need to protect the public safety with regard to
these actual or potential acts strong enough to warrant the
above-mentioned suspension of the writ of Habeas Corpus.
that said anything about the US invading another country.
Second, your point doesn't make sense. The section (and the
subject of this article) pertains to individuals, not to nations.
There is no such thing as the writ of Habeas Corpus for nations,
as you're apparently suggesting by your spurious reply.
The conflict that needs to be decided upon is between this
section in the Constitution vs. Amendments IV and V.
There is [sic] no conflict:
That would be for the courts to decide. There is no legal authority
that holds to Amendments IV and V superseding any part of Article I
Section 9. The only part of section 9 generally held to be
superseded or modified by any amendment, in fact, is the fourth
paragraph, which deals with taxation (affected by Amendment XVI).
the amendments are part of the Constitution,
Non sequitur.
 
 
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