I just talked to Sherrod Brown's office. Keith Olberman is wrong..

[truth2power]

according to the staff person I spoke with. Yes, she said we all still have the right of habeas corpus and that she "read{s} it {the bill} differently" than I do.

I have read portions of the bill and it seems clear to me. I guess all these people who are up in arms are deluded and Congressman Brown was correct in voting FOR the bill.

Could someone please post the relevant text and I'l call back? Thanks.

[onenote]

1. what exactly is the issue

If its whether the MCA restricts habeas corpus for US citizens, the answer is no it doesn't.
If the question is whether the MCA restricts habeas corpus for noncitizens, the answer is yes it does.

[Mass]

4. Except that it allows to hold "civilian ennemy combattants'" without

charging them and without them knowing the charges, whether they are citizens or not.

[onenote]

8. link to provision in law?

The provision relating to habeas corpus expressly is limited to alien enemy combatants.

[OzarkDem]

106. Brown's statement - pretty easy to understand

Interesting how a Google search on this issue mostly showed the usual GOP web sites, same old crowd. Time to move on....

http://sherrodbrown.com/road/stories/667

Yesterday, Congressman Brown voted for a bill that creates a military tribunal to try those enemy combatants that have been held by the government since September 11, 2001.

This compromise is supported by Senator John McCain, a former POW who fought to ensure that this tribunal lives up to our national standards on human rights.

Unlike President Bush's plan, this compromise measure prohibits the degrading treatment of detainees and specifically lists the types of behaviors that are banned in accordance with the Geneva Conventions.

The Washington Post wrote about the legislation, "The compromise legislation does not seek to narrow U.S. obligations under the Geneva Conventions in the treatment of prisoners, as Bush had hoped."

Those detained have been held for more than 5 years with no opportunity to prove their guilt or innocence.

It will provide that opportunity, so that those who are innocent can be set free and those who are guilty can be punished.

The bill prohibits the use of cruel, inhumane, and degrading treatment of detainees. Because that evidence is often unreliable, it will not admit evidence obtained through torture

Detainees will be entitled to Combatant Status Review, where they may challenge their detention within the confines of the military tribunal system.

And the bill will allow combatants to receive an edited version of classified evidence being used to convict them so that they can respond without putting our national security at risk.

Congressman Brown feels it has taken far too long for a legal framework to be developed – for the innocent who must be freed, the guilty that must be punished, and our homeland which must be secured.

[BlueEyedSon]

5. What about people (arbitrarily) declared enemy combatants?

Can the powers that be strip you of your citizenship summarily and then continue in a HC-free environment?

[onenote]

10. no. there is no provision allowing you to be stripped of citizenship

[RaleighNCDUer]

19. That part is in the upcoming Patriot II.

The effect will only be evident when you stack em.

[onenote]

21. link?

[frogcycle]

102. they dont need to

if they deem you to be an enemy combatant, then you are one. your citizenship just became moot.

[OzarkDem]

105. Welcome to DU!

Your argument has no merit.

[Greyhound]

34. True, however the patriot act allows the dictator and his assignees

to arbitrarily, with no evidence required, to designate anyone they want as an enemy and strip them of citizenship. So, technically you are right, but practically it eliminates the very foundation of our justice system.

[onenote]

36. no it doesn't

please provide a link. I think you are referring to a draft version of Patriot II that was never introduced, let alone enacted.

[Greyhound]

46. Text here

Section 501, amend the “expatriation statute”— the law defining when and under what circumstances an American citizen can be stripped of citizenship—to provide that “an American could be expatriated if, with the intent to relinquish nationality, he becomes a member of, or provides material support to, a group that the United States has designated as a ‘terrorist organization.’” Importantly, “(t)his provision would also make explicit that the intent to relinquish nationality need not be manifested in words, but can be inferred from conduct.” Thus, whenever a U.S. citizen is accused of “providing material support” to a terrorist organization, he or she could be subjected to losing citizenship status and removed from the country. Similarly, Section 503 grants the Attorney General the power to deny admission to the U.S. or remove from the country any individual that he determines he has “reason to believe would pose a danger to the national security of the United States.” http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=364&topic_id=2248028#2256127"> From this thread

So, the AG simly has to convince himself, not a very tough audience. :think:

And the suspension http://www.npr.org/templates/story/story.php?storyId=6161833">from the Detainee Bill is here courtesy of NPR.

[onenote]

54. that language was never introduced or enacted

As I pointed out in the same thread you linked to in your post, the language you are citing is from the Feb. 7 2003 "leaked draft" of Patriot II. That version of the legislation was never introduced, let alone enacted, and the expatriation provision has never been enacted as part of any other bill.

To check this yourself, go to thomas.gov and search for the Domestic Security Enhancement Act. You wont' find it because it never got introduced. Wikipedia has a lengthy discussion of the Feb 7 2003 draft DSEA.

Finally, while you are at thomas.gov, search for the specific language quoted: you'll discover it doesn't appear in any bill introduced or passed.

[Greyhound]

113. Oh well, then I guess everything's must be just fine.

I know our politiwhores would never do any thing that wasn't explicitly approved by law.

[Bandit]

44. They already restricted Habeas Corpus for Jose Padilla

A US Citizen taken from the streets of Chicago. They named him enemy combatant and removed all his American Constitutional Rights by that nomenclature.

[Zhade]

45. See post #3, below. You're wrong.

NT!

[onenote]

56. if your responding to my post, there's nothing in post #3

that contradicts what I wrote. And nothing in the article cited in post #3 that contradicts. Nowhere does that article say that the restrictions on habeas corpus apply to citizens.

[mike_c]

2. two words....

Jose Padilla. Imprisoned for 3.5 years without charge. It seems clear that the administration's intent is to withhold access to habeas corpus.

[shance]

27. Thank you Mike.

n/t

[Skinner]

3. From the New York Times

It strips detainees of a habeas corpus right to challenge their detentions in court and broadly defines what kind of treatment of detainees is prosecutable as a war crime.

(snip)

And even some Republicans who said voted for the bill said they expected the Supreme Court to strike down the legislation because of the habeas corpus provision, ultimately sending the legislation right back to Congress.

“We should have done it right, because we’re going to have to do it again,” said Senator Gordon Smith, a Republican from Oregon, who had voted to strike the habeas corpus provision, yet supported the bill.

http://www.nytimes.com/2006/09/28/washington/29detaincnd.html

[Cessna Invesco Palin]

6. It's the Alien & Sedition Acts all over again. n/t

[librechik]

9. then it leaves the definition of combatant and detainee so vague

that a determined president and a compliant court could conceivably imprison anyone anywhere for any reason and keep them indefinitely without access to lawyers.

Who are these people and what have they done with my country?

[lumberjack_jeff]

110. As a practical matter

The law allows "unlawfal combatants" to be locked up and held in secret, without access to civilian courts.

If a citizen is swept up, there's no mechanism for him to challenge the legality of his detention.

[truth2power]

12. She said *paraphrasing*..

that many of the detainees, some of them innocent, are sitting there with no way to challenge their detention and that the bill now allows them to take their case to the DC circuit court (I think) and then to the Supreme Court. Didn't the bill say something about judicial review?

I'm not registered with the NYT so will have to try bugmenot to get the article.

[gratuitous]

13. Thank you, Sen. Smith

I've got a phone call to make.

He admits that the bill is fucked up, won't pass constitutional scrutiny, yet he voted for it all the same. Is there some emergency situation where we needed this legislation passed?* Or were the Republicans once again playing politics with the nation's security, ginning up fear among the populace to serve their own partisan ends? Because it's sure hard to escape that conclusion.

*Keep in mind that preserving the Republican majorities in Congress does not constitute an emergency, Senator Pond-killer.

[OzarkDem]

89. Talk about ignoring facts n/t

[TahitiNut]

41. Quite simply, whomever is detained loses habeas corpus rights.

All else is facade and falsehood. Since there can be no judicial review, there can be no judicial verification that the basis for detention itself has any merit whatsoever! All that's necessary is the detention itself to eradicate habeas corpus.

Defenders of this abomination claim it's only non-citizens. Well, who is there to challenge the claim that the person isn't a citizen? Nobody!

Defenders of this abomination claim it's only 'illegal combatants.' Again, who is there to challenge that claim? Nobody!

When the only authority that exists to assure the most minimal questions of fact is the detaining authority itself, there is no habeas corpus ... for anyone!

Thus, there is literally nobody to offset such a unilateral act. Anybody can be so detained and there is absolutely no recourse whatsoever.

[lillilbigone]

59. If you read only one post in this thread, read TahitiNut's nt

[TahitiNut]

62. Thanks. It's surprising to me that this isn't clear.

All of the protestations the "only so-and-so can be detained" ... and there's not single damned thing that can be done if it isn't because there's no review.

I find I have to actually step 'normal' adults through it.

Me: OK ... imagine you're detained and sent to Gitmo.
Dullard: But I'm a citizen!
Me: Who cares? Who are you going to tell once you're detained?
Dullard: But they won't detain me if I'm a citizen.
Me: Who's going to stop them? You don't have any judicial review once you're detained.
Dullard: But the law says only "alien illegal combatants"!
Me: If a court can't even begine a review of your detention, nobody cares!
... and on and on and on.

People think these things are 'automatic' or something - like gravity. It's incredible.

[onenote]

64. where does it say a court can't review detention of a citizen?

I've read this over and over and still can't find that...

[TahitiNut]

67. (sigh) How and to whom are you going to prove you're a citizen?

If there's no habeas corpus, the detainee has no forum in which such an abuse of police power can be reviewed.

In essence, the King is the only authority that reviews what the King does. That's why the Magna Carta was even needed. This is REALLY fundamental stuff. It's appalling that so few even comprehend this.

[onenote]

70. You really don't understand how it works, do you.

I'll use your method. Will Pitt will be the US citizen who has been declared an unlawful enemy combatant. His friends and family hire me to be his attorney ('next friend' in the terminology of habeas corpus law) to seek a writ of habeas corpus on Will's behalf. You will be the government attorney arguing that the court can't hear my petition.

Here's the dialog with the court to whom I present my petition.

Onenote (O-N): Your honor, I am seeking a writ of habeas corpus for Joe Smith, an American citizen who has been designated an unlawful enemy combatant and detained on that basis.

TahitiNut (T-N): Your honor, the government objects. We have made a dispositive determination under the Military Commissions Act that Will Pitt is an alien unlawful enemy combatant and, under the terms of the Act, this court has no jurisdiction to consider this petition.

The Court: Counsel T-N, can you cite to where the law says that this court cannot determine whether Mr. Pitt is a citizen and thus not covered by the provision of the Act restricting writs of habeas corpus?

T-N: Its the provision that says that our determination as to the status of an individual as an enemy combatant is dispositive.

The Court: The law says that your determination as to whether an individual is an enemy combatant is dispositive. Where does it say that your determination as to whether an individual is a citizen is dispositive.

T-N: (Quietly shuffles papers and looks around the room).

The Court: That's what I thought. You are misreading the law. If the law made being an alien an element of the definition of an unlawful enemy combatant, you might have a case (although the constitutionality of the law would be dubious in my opinion). However, while the Congress has given you dispositive authority to determine who is an enemy combatant, being an alien is not part of that definition. It is a separate term and nothing in the Act gives you dispositive authority over the issue of whether someone is a citizen. If O-N can produce evidence (which the government may try to rebut with its own evidence) then this court can, and indeed must, hear the petition. On the other hand, if we, the court, determine that Mr. Pitt is not a citizen then , but only then, will we grant the government's motion and dismiss the petition filed on behalf of Mr. Pitt.

That's exactly how it will go...

[TahitiNut]

73. Nonsense. Mohamed abu Pitt was detained.

The detaining authority doesn't know Will Pitt, just Mohamed abu Pitt. They don't show. The court has no review authority.

The scenario you present depends on the following assumptions:

(1) There was someone 'friendly' who witnessed or otherwise became aware of the detention.
(2) There was some means to identify those who did the detention.
(3) There's a cooperative office/authority who matches the court action to a warm body - a warm body that may be languishing in some eastern European country's facilities.

I don't assume any of this. As long as the King reviews the King, there's no habeas corpus.

Remember, the Bushoilini 'unitary Executive' motto is "L'etat c'est moi!"

[onenote]

82. so now we're into the silly argument phase

Hard to argue with the "if a tree falls in the forest and noone hears it how can they get a lawyer to try to help them" logic.

Of course, let's pretend its 1964 and an African-American man is driving through some southern town and they stop him and throw him in jail. No charges, no anything. Just cause they don't like his kind. No "friendly" witnessed or is aware of the detention. The guy is screwed.

Of course that's the same scenario that you're suggesting in connection with the detention of an unlawful enemy combatant. So if the same thing could've happened in the USofA in 1965 in Asswipe,Alabama, explain again what your argument has to do with the terms of the MCA.

By the way, you do realize that Hamdi, and Hamdan and Padilla all ended up getting their cases in front of a judge, right?

[Name removed]

92. Deleted message

Message removed by moderator. Click here to review the message board rules.

[onenote]

96. some people use freeper tactis, even here on DU

Try reading post 25 before you spout nonsense.

[OzarkDem]

103. Playing into the GOP's polticial strategy is nonsense

and that's exactly what's happening here. They set this up deliberately to hurt Brown. When he foiled them, they've now switched to using it as a wedge to get Dem voters riled up. As we've already seen, its not working.

Please don't be offended, but I trust Brown's reading of this very important issue more than yours. He has much more experience and expertise. Continuing to flog a dead horse on this issue doesn't make sense unless you're trying to get Mike DeWine elected. I doubt that is your intention.

[Marie26]

77. That's just all wrong.

The law determines who is an "enemy combatant," but it DOESN'T determine who is an "alien." The term "alien" has a well-defined meaning in all of US immigration law, and this bill does not modify that meaning at all. An "alien" is a person who is not a US citizen. Period. Your post is very smug for someone who doesn't seem to understand the law. If someone is a US citizen, they still have the right to petition for habeas corpus. To stop that petition, the government would have to try to prove to the court that the US citizen is in fact not a US citizen, which is a ridiculous argument & easily disproven by a birth certificate or naturalization papers. US citizens cannot be tried by military commissions under this law, & haven't lost the writ of habeas corpus.


From the bill:

Section 948(a) Definitions - `(3) ALIEN- The term `alien' means a person who is not a citizen of the United States.'

Section 948(c) Persons subject to military commissions - `Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.

Section 7 - Habeas Corpus Matters -
`(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

[onenote]

95. thanks!

Hope you don't get the "you must be a republican" treatment.

[onenote]

60. quite simply not simple

where does the law say that there is no opportunity for a citizen to have a petition for habeas corpus filed with a court?

[TahitiNut]

61. read it

[onenote]

63. I did. If you say its there, you should be able to point it out

[TahitiNut]

65. Why do you even play this game? Here. Read ...

SEC. 7. HABEAS CORPUS MATTERS.

(a) In General- Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and the subsection (e) added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477) and inserting the following new subsection (e):

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

`(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.

(b) Effective Date- The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.

Search results on Thomas aren't preserved, so start here http://thomas.loc.gov/ and search for bill number S.03930

[onenote]

71. what part of the word "alien" don't you understand

the A the L the I the E or the N?

[TahitiNut]

72. What part of "PROVE IT" don't you understand???

Just who the fuck are you going to prove it to?? You're detained and called an alien. That's it! How much clearer does it have to get?

[onenote]

75. that's what courts do: resolve questions of fact

Nothing says you can't go to court. The court will throw you out if you're an alien. They'll hear the petition if you're not. Its really not that hard to understand.

[Hosnon]

76. Well that's a fundamental problem everyone has. They could have done that

prior to this legislation.

[TahitiNut]

78. No. Not under color of law.

Which brings up the Constitutional question of whether habeas corpus is an entitlement or a human right. The MCA treats it as an entitlement - afforded only to citizens. I disagree. The Constitution is consistent, recognizing the rights of "people" and "persons" (not "citizens") and prohibiting abridgment of human rights. The old Roman Empire recognized no human rights, only the privileges of the entitled, where "citizen" was an entitlement - subject to government approval (i.e. law). What can be granted by statute can be taken away by statute, and vice versa. Since the 'naturalization' of a citizen is still a matter of law and government approval, 'citizen' is still an entitlement. That's part of what's scary to me. See, if the government is sovereign over who is and who isn't a 'citizen' then treating all 'rights' as 'entitlements' means there is no longer any such thing as inalienable.

[Hosnon]

83. It seemed to me that the point you were making in this subthread was that

you could be called an "alien" and have no recourse. The argument appears to me to be saying that a citizen can be "alienized" without color of law. The statute certainly doesn't permit the executive to grab a citizen and call them an alien...that would be illegal.

My point was that we all have that problem, regardless of this statute. Bush could grab me today and throw me in a hole and I'd just be gone.

[TahitiNut]

93. Except we had only very narrow differences in the protections

... afforded the rights of people independent of whether they're citizens or non-citizens against infringements by government until the last 5 years. As soon as something as fundamentally protective of ALL human rights as habeas corpus is knocked down (purportedly only for alleged aliens), then all due process is at risk and the human rights and liberties thus safeguarded.

[onenote]

98. see, here's somewhere we agree (I think)

I don't think the MCA restricts the writ of habeas corpus as applied to citizens. But my understanding of the statute doesn't make it less offensive to me. Restricting it for non-citizens is no less offensive than if it had restricted it as applied to citizens. It is contrary to fundamental principals of fairness and due process, to international norms regarding the treatment of prisoners, and ultimately makes us less, rather than more, safe.

[TahitiNut]

107. That's why I call it a facade.

While a literal reading of the MCA purports to deprive ONLY aliens of the protections of habeas corpus, I regard that as a huge breach in the wall that contains government power to infringe on human liberties. While you express confidence that a court will hear (and the government will respect) a petition for a writ where the detainee is an alleged citizen, I have neither that same confidence (which prison holds him/her?) nor the sanguinity that it's an amelioration. Further, citizenship is a matter of statutory law - and can be deemed to be surrendered/abandoned under a wide variety of conditions. I don't believe that the predations undertaken beneath the camoflage of the MCA will be made subject to any checks and balances regarding the designation of 'alien.'

In other words, I don't believe MCA will actually protect citizens either - and even if it did, it's an appalling surrender of a safeguard against infringement of human rights.

I would pray that SCOTUS wipes out the habeas suspension forthwith. If only in the sense that it's an intrusion on the Judiciary's role I would hope that the self-interest (covetousness) of even the rightmost justices impel them to eradicate that provison.

And we've not even addressed torture. Where's Miranda when we really need it? (Yes! I believe such detainees should have all the protections referenced in a Miranda warning.)

[onenote]

97. well, habeas corpus was never "inalienable" in the constitution

The very provision referring to it makes clear it can be restricted under certain circumstances. I believe it ought to protect non-citizens as well as citizens, but I think its unclear how the courts will resolve the issue. But one thing is sure, they won't resolve it based on the notion that habeas corpus is a "human right".

[Divine Discontent]

80. so if they ever come for us dems and say they want to just talk

fight for our lives to get away.. right? :)

[ananda]

7. the problem

Even though, ostensibly, the bill restricts habeas corpus for non-citizens and
not for citizens, it's the way the crimes and the criminals are defined that matters.

It applies to anyone deemed hostile to American interests. That's very worrisome
because the way Bush and the GOP define American interests includes only those
who support the war and the GOP.

The danger, imv, is what this means for activists and protesters, notwithstanding
anyone in the USA who might have the same look or the same name as a so-called
"terrorist."

[peace13]

11. I am sure that she is perfectly aware that the bill is evil.

If he voted against it he would be soft on terror,vote for it and he sells our rights down the river. Personally I think it was a bad move on Brown's part. Good luck with this! As an Ohioan I watch all of this with a sense of mystery. Memories of standing on the Statehouse corner December 2004 and wondering where the other enraged people were, still cloud my mind. Thanks for working on this. Peace, Kim

[truth2power]

15. Thank you. I've been yelling about this for weeks now..

not many people care.

[windbreeze]

14. See the thing is

Remember that thing called a "signing statement"? How many of them has * signed, to put HIM above the law?

Do any of US trust those in charge now, to care about whether you are an American citizen or not...IF they ARREST you?

in short...would I trust this bunch not to find or create a loophole or two?....NOT on MY life...!! Who's going to hold THEM accountable??

NO ONE who voted for this bill was RIGHT...IF we wouldn't want it done to us...we should not vote to do it to someone else....where is our humanity at that point??? imo, of course...
windbreeze

[liam_laddie]

16. Brown's vote was...

:think:
I think, a tactical move to keep the rethuglik party from hitting him with the "soft on terror" bat.
I hope that he held his nose while casting his vote, but looked at longer term, and without
a "strict idelogical" stance on my (our) part, I understand his tactic. He, like most in Congress,
figures that much of this onerous bill will be deleted in the courts.

[razors edge]

26. It didn't work.

all dewine ads still attacking him for just that based on previous votes about intelligence funding.

[Kolesar]

29. Those "intelligence funding" attacks are not working. The detainee bill...

...was a real problem for the Democrats. Brown avoided the problem with his vote. You don't see any ads related to his vote on that bill, now do you????

The bill was a setup, staged for the pre-election period, all the way.

[razors edge]

40. No I do not see any adds

about the torture bill, I wish I did. Then brown could run an add exposing this unconstitutional BS and actually made an argument back instead of allowing dewine to continue the current adds without rebuttal.

[Kolesar]

43. Brown is rebutting the current ads with the "missed meetings" ad...

...but, more broadly, I don't follow what you are getting at. Please elaborate.

[razors edge]

49. I see the adds, I live in Toledo.

i would much rather have seen the all Democrats vote against this law and wait for the inevitable smear attacks and then respond appropriately.

Just as the republicans like to use terminology like Death Tax, We should have taken a stand against this and called it what it is in all campaign commercials, A Torture Bill supported by the republicans to continue the mistreatment of prisoners and provide cover for criminal breaches of our constitution.

I would respect that more than I caved so they wouldn't talk bad about me.

Control the context and control the debate, or side with the opponent so you don't have to debate. Which of the two do you prefer?

[OzarkDem]

84. Exactly, it was a set up, Brown avoided it

and its meaningless, it will be struck down by the courts.

This is starting to look like a little Rovian October Surprise for Sherrod. When Rove can't get to him with the vote on detainees, he tries to turn Dems against him.

:eyes:

Rove knows he can always count on a few DU'ers to help him out.

[truth2power]

28. It may very well have been a tactical move, as you said, but...

if Sherrod Brown is not intelligent enough to frame the issues (importance of habeas corpus, judicial review etc.) so the people of Ohio understand how essential they are to our democracy, then he isn't intelligent enough to be elected to the Ohio Senate. And how many people will be illegally detained and tortured by the time the "longer term" comes to pass?

I am sick of Dems voting to help the Bush cabal to take away our civil rights.

[Kolesar]

30. Fox News and the Plain Dealer frame our issues

The PD even editorialized against the bill, but those creeps would not have given Brown one bit of support had he voted nay. As Sherrod reported in his interviews, the Ohio newspapers are biased against him.

[OzarkDem]

86. True, and his poll numbers are still improving n/t

[Elidor]

35. I wish I had a link for this

But I'm on my lunch hour: when the bill passed, Sherrod Brown was quoted as saying that he had polled on the issue of detainee rights and people didn't care. What a disappointment he is.

[Kolesar]

37. MISINFORMATION-That was a Schumer quote in a dailykos.com thread

[Divine Discontent]

81. prove it! LOL

just kidding.. good call on catching the misinfo.... :applause:

[Elidor]

114. If I am mistaken, I apologize

Do you always yell 'MISINFORMATION' when you believe someone is wrong? I saw it in a thread here at DU the day the bill was voted on, which I can no longer find.

[OzarkDem]

87. I call bullshit n/t

[OzarkDem]

85. Looks like he proved you wrong

Here in Ohio, no one is worried about it. I've been doing a lot of phone banking lately, and no one is paying attention to the GOP diversion.

They're worried about the economy health care, and getting out of Iraq. I'm also hearing a lot of talk about Social Security and balancing the budget.

About Sherrod's vote on this bill? Nada, nil, nothing.

[Mass]

17. Here is a good explaination of the problem of the bill and how it applies

or not to citizens.

http://balkin.blogspot.com/2006/09/does-military-commissions-act-apply-to.html

In addition, it is reassuring to see how many DUers care about foreigners who could be detained this way by error.

[onenote]

25. the flaw I see in Balkin's analysis of the habeas corpus issue

Balkin acknowledges that the restriction on habeas corpus is limited to non-citizens. He attempts to create an issue by suggesting that a Combatant Status Review Tribunal could make a conclusive determination that a person is a non-citizen under 948(a)(ii). . However, those provisions only discuss the determination of whether someone is an unlawful enemy combatant, not whether they are a citizen. Separate issue. Given that the statute doesn't say anything about determinations regarding citizenship being conclusive, a court will almost certainly avoid the constitutional issue that Balkin describes by reading the statute consistent with its plain language as allowing courts to make a determination as to whether someone labelled as an enemy combatant is a citizen.

Let me be clear about one thing. This law is an abomination. And it would be no less an abomination if its first line was "Nothing in this act applies to United States Citizens". Its not the fact that it might apply to citizens that makes it appalling -- its the fact that it is inconsistent with and violative of the principles of due process and fairness that supposedly are a hallmark of this nation, that is is inconsistent with and violative of international norms regarding the treatment of prisoners, and ultimately, that it will put our own military personnel at greater risk and make our country less, not more, safe.

[madfloridian]

18. Bill Nelson: I voted for it but I hope the court strikes some of it down.

That's right...vote for it even if you know a vital part of our Democracy might disappear with a "unitary executive" in charge.

[Crabby Appleton]

20. Section 7 of MCA 2006

is the part of the MCA 2006 that modifies Habeas Corpus. Note the use of the word "alien" in (e)(1). The modification applies to alien enemy combatants; if you are not an alien enemy combatant then your habeas rights are not changed.

SEC. 7. HABEAS CORPUS MATTERS.

(a) In General- Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and the subsection (e) added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477) and inserting the following new subsection (e):

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

`(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.

(b) Effective Date- The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.

The entire act passed by both House and Senate and "presented to president" can be found here:

S.3830 - Military Commissions Act of 2006 (Enrolled as Agreed to or Passed by Both House and Senate)

Section 7 is near the bottom.

MCA 2006 was presented to president yesterday, Oct 10 2006

[Mass]

22. So, if you are arrested tomorrow as an alien unlawful ennemy combattant

how do you fight, given that the military will apply section 7 to you.

Balkanization had a very good explanation of the problem in an earlier post last month.

http://balkin.blogspot.com/2006/09/does-military-commissions-act-apply-to.html

However, what if the DoD determines that a U.S. citizen is an alien in a Combatant Status Review Tribunal, claims that its determination is conclusive under section 948a(1)(ii) and ships the person off to Guantanamo? As I noted before, section 948a(1)(ii) is probably unconstitutional to the extent that it suggests that DoD determinations are conclusive. The citizen should still have the right to prove that he is a citizen in a habeas proceeding, and a court must determine that question in order to determine whether it has jurisdiction. To the extent that the MCA would prevent such a determination, it is unconstitutional.

[truth2power]

31. OK. Here's the problematic section...

"In this chapter:
‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlawful
enemy combatant’ means—
‘‘(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);" (added emphasis)

"A person" means anyone; whether or not they are a citizen of the US. Since Junior has already said, in many different ways, that those who don't agree with him are "with the terrorists", how does that preclude him from designating anyone who protests, writes a LTTE etc. disagreeing with the Regime to be an "unlawful enemy combatant"?

I feel like I'm pissing in the wind here. The text says what it says.

NOTE: Crabby - I'm not directing my ire toward you. It's just that we can't depend on Bush to be the "decider" as to who's an enemy combatant.

[ieoeja]

38. Reading Comprehension

Truth. T. Power is arrested attempting to blow up a federal building on behalf of the oppressed people of Someplaceistan.

The Military Commissions Act of 2006 defines Truth. T. Power as an UNLAWFUL ENEMY COMBATANT.

Section 7 of the same Act applies to "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". Since the MCA does not define Truth. T. Power, a US citizen, as an "alien" enemy combatant, this section does not apply.

The words "alien" and "UNLAWFUL" are not synonymous.

[Hosnon]

47. The section you cite qualifies another section:

A "person" that is not an "alien" is not covered by the statute:

Beginning with the section that denies habeas corpus jurisdiction:

(e)(1) No court ... 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 ....

An individual must be an "alien" for Habeas Corpus to be denied pursuant to (e)(1).

"Alien" is defined as:

(3) ... a person who is not a citizen of the United States.

Habeas Corpus has only been denied to aliens who are enemy combatants. Even if Bush gets to label anyone he wants as an "enemy combatant", Habeas Corpus is only denied if the enemy combatant is not a citizen of the United States.

[Daphne08]

23. I think the problem lies with the broad language of the bill.

[Solon]

24. I don't care if the bill applies to citizens, non-citizens...

or two headed aliens from Sirius VI, the bill is wrong, no matter what. Those who would sell out their principles for political expediency deserve no respect, period. Those who actually think this bill is good, that it actually helps them uphold their principles are people who deserve nothing less than contempt. End of story.

[Kolesar]

32. Run for Senate

if you think it is so easy.

[Generator]

51. I'm sure/he/she would never do such a thing

Since not only isn't it easy,but it must require the shedding of all humanity. Not to mention becoming a mealymouthed son of a bitch. Not easy at all. WHAT a frigging cop out answer you gave to defend all the these great senators or congresspeople that I am supposed to RESPECT because it's "not easy" to be in congress. These people (I guess I can assume they are really people anyway though I would like proof of beating hearts AND real minds at this point in the game) have sold out your rights for a the HOPE of a few frigging votes so they can stay in office and sell out our rights and country some more. It's so NOT easy, I agree.

[Kolesar]

52. Well, that was an anguished and disconnected thesis...eom

[enigmacat]

55. And your posts on this topic have been BORING and GLIB.

Please try better next time, since this topic is about a subject of supreme importance: Our human and legal rights. Thank you.

[Name removed]

79. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Kolesar]

108. NO, YOU TRY BETTER NEXT TIME

You have not contributed any god-damned thing to the content of this thread except one god-damned post where you attacked me.

[onenote]

101. exactly right

Sometimes I think that there are folks here who believe that this bill would be fine and dandy if it just had a big, all caps provision at the beginning that said "Nothing in this legislation applies to US Citizens". Well, it would still be an abomination even if had that language (and, in effect, it does have that language, just not quite so obviously).

[grasswire]

33. remember, Bush hasn't signed the bill yet

So we don't yet know what his "signing statement" will contain.

[Marie26]

39. That's baloney

Orwellian BS. They're trying to tell us the bill didn't say what the bill said.

Here's the relevant section of the Military Commissions Bill:

SEC. 7. HABEAS CORPUS MATTERS.
`(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

http://icreport.loc.gov/cgi-bin/query/F?c109:4:./temp/~c109pIfP9I:e116515:

And from the US Constitution:

"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” (Article 1, Section 9).

This is so clearly unconstitutional it's not even funny. EVERY politician who voted for this bill knew it was unconstitutional.

[onenote]

57. what is baloney?

I'm a bit confused by your post. I'm assuming you are not saying that it's baloney to say that habeas corpus has been restricted only for non-citizens, since the language you quote expressly says that the restriction applies only to aliens.

As for whether a statute that restricts habeas corpus for non-citizens is unconstitutional -- I hope and think it is, but I wouldn't go so far as to say it clearly is. WHether a particular provision of the constitution is or is not applicable to non-citizens is an issue that is not necessarily "clear" under the courts precedents. Moreover, there habeas corpus provision doesn't absolutely bar suspending the "privilege" of habeas corpus, rather it allows COngress to suspend it when "in cases of rebellion or invasion the public safety may require it". I would read that language narrowly (and would hope the SCOTUS would as well), but heaven only knows how broadly Roberts et al will read the word "invasion".

[Marie26]

66. It's clearly baloney

The OP said that Brown's representative said: "Yes, she said we all still have the right of habeas corpus." And that CLEARLY isn't true. This bill expressly removes the right to habeas corpus for any "alien enemy combatants." That's the section of the bill I quoted. For her to say we ALL still have habeas corpus is just plain wrong. Now, if you're saying that this doesn't apply to US citizens, we agree there. I've been on a lot of the "liberals will be jailed!!" threads saying that this bill only applies to non-US citizens.

And this bill is also clearly unconstitutional. Even many of the Senators who voted for it said that it is unconstitutional & they expect it to be overturned. If the Supreme Court was doing it's actual JOB, this law should be overturned unanimously. This new law basically attempts to overturn the SC's own decision in Hamdan, which stopped Gitmo, so that Bush can have his precious gulags anyway. It was unconstitutional then, and it is now. The habeas corpus ban just makes it that much more glaringly obvious. Even Scalia, w/his belief in a strict construction of the Constitution, can't find a way to twist this. The Constitution expressly forbids removing habeas corpus except in cases of armed rebellion (any riots in the streets?), or invasion (any Canadian troops?). Neither of those exceptions exist here. The SC may be stacked w/Bushbots, but they have ruled against him on civil liberties cases. IMO, there's a pretty solid 5-vote majority to overturn this law - Stevens, Kennedy, Ginsberg, Souter, & Breyer all ruled against Bush in the Gitmo case. My main curiosity is to see if "strict constructionalist" Scalia actually follows his supposed principles or his fascist tendencies. And wherever Scalia goes, Thomas will follow. Alito & Roberts might vote to uphold this law, but it doesn't matter. There's already a solid 5-vote majority to overturn. This bill is DOA, in my honest opinion. And, IMO, that's why so many senators rolled over & voted for the thing - they're pretty confident it will eventually be overturned.

[onenote]

74. I hope you're right, but I worry that Hamdan is a very narrow decision

The SCOTUS in Hamdan expressly disavowed resolving constitutional issues. Of even greater concern is the plurality opinion of Justice Breyer, which was joined by Kennedy, Souter, and Ginsburg. Here is what it says in its entirety. The reasons for my concern about how they would regard the MCA are pretty clear from the language:


JUSTICE BREYER, with whom JUSTICE KENNEDY, JUSTICE SOUTER, and JUSTICE GINSBURG join, concurring.

The dissenters say that today's decision would "sorely hamper the President's ability to confront and defeat a new and deadly enemy." Post, at 29 (opinion of THOMAS, J.). They suggest that it undermines our Nation's ability to "preven future attacks" of the grievous sort that we have already suffered. Post, at 48. That claim leads me to state briefly what I believe the majority sets forth both explicitly and implicitly at greater length. The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a "blank check." Cf. Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.

Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine-through democratic means-how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

[Name removed]

90. Deleted message

Message removed by moderator. Click here to review the message board rules.

[onenote]

94. ooh, I'm so hurt. Why don't you try reading what I wrote in post 25

Of course, with your reading comprehension limitations, I don't have much hope you'll understand it.

[Marie26]

109. Confused attack dog

God save us from fanatics & their sacred cows. You really, really want to attack anyone who even breathes a possible criticism against Sherrod Brown, but you also really want to attack anyone who actually tries to explain how this bill applies. So you attack both, not realizing that your attacks are self-contradicting. So, anyone who says this bill doesn't apply to US citizens, or who you perceive as defending the bill, is actually a Freeper/DeWine supporter? Yet anyone who criticizes Brown for voting for the thing is also a Freeper/DeWine supporter? Brown has defended this bill, and said it doesn't take away US citizens' rights. Does this also make Sherrod Brown a DeWine supporter? Just trying to follow your "logic".

[OzarkDem]

111. Some people have a habit

of taking every opportunity to skewer Dems or oppose efforts to hold Republicans accountable for their corruption without ever contributing anything meaningful to the discussion. Circular firing squads get us nowhere, but they do help keep Republicans in power.

You shouldn't be surprised to hear this, considering it is a forum that supports Democratic candidates.

[Marie26]

112. Making no sense at all

So we shouldn't criticize politicians who voted for this bill, even when those candidates support a bill that allows torture & removes habeas corpus? Are you seriously suggesting that anyone who criticizes this bill is a Republican, or not holding Republicans to account? If so, you are in a distinct minority, even in this forum. Basic Democratic values - human rights, civil liberties, protection of the vulnerable, & belief in the Bill of Rights, are at stake here. There are some principles that are more important than blind support of every Dem out there. You yourself said this will be overturned, meaning you think it's unconstitutional, but no one is allowed to say that? No way. Your position that "Brown must always be right" has led you into the odd position of actually defending this Republican-led bill. I like Sherrod Brown, I hope he wins, but I disagree w/his vote on this issue. And I'm tired of attack dogs who will flame anyone who even says one word against their hero.

[GreenTea]

42. She is either an ignorant dumb fuck or a lying dumb fuck...

Either way, there is NO excuse for her even answering a telephone.

There is no consideration for the 500 year old plus, Habeas Corpus that is considered a natural civil right of detainees around the world - In the bill that twelve "Democratic" US senators helped just get passed, getting Bush off the hook for his past crimes as well as new ones that he plans...

It is also a direct assault and arrogant disregard of OUR Constitution!

And very few are outraged.

Hopefully the courts will see fit and strike it down once and for all.

Keith Olbermann was right on the money correct!

http://www.lectlaw.com/def/h001.htm

[McCamy Taylor]

48. Law Professor says US Citizens can be detained under this law:

http://www.alternet.org/rights/42458/

The Military Commissions Act of 2006 governing the treatment of detainees is the culmination of relentless fear-mongering by the Bush administration since the September 11 terrorist attacks.

Because the bill was adopted with lightning speed, barely anyone noticed that it empowers Bush to declare not just aliens, but also U.S. citizens, "unlawful enemy combatants."

Bush & Co. has portrayed the bill as a tough way to deal with aliens to protect us against terrorism. Frightened they might lose their majority in Congress in the November elections, the Republicans rammed the bill through Congress with little substantive debate.

Anyone who donates money to a charity that turns up on Bush's list of "terrorist" organizations, or who speaks out against the government's policies could be declared an "unlawful enemy combatant" and imprisoned indefinitely. That includes American citizens.

[Hosnon]

50. She has the benefit of the doubt in my opinion but I just don't see how

she has come to that conclusion.

The term "alien" is there, loud and clear.

EDIT: What am I missing here?

[Marie26]

68. Me either.

I've read that bill backwards & forward, trying to see how it can apply to US citizens, & I just don't see it. It's true that the provision on "enemy combatants" seems to allow both citizens & non-citizens to be delcared as such, but the next provision clearly states that the military commissions can ONLY apply to "alien" enemy combatants. I heard that Bush originally wanted the law to apply to US citizens, but Congress modified the bill to insert "alien" in front of every description of who may be subject to this law. They did at least that much.

[Hosnon]

69. Right. The habeas corpus provision explicitly only applies to aliens.

The definition of enemy combatant could most definitely include U.S. citizens but that doesn't matter. Do we have to draw Venn diagrams?

The "alien" circle and the "enemy combatant" circle overlap to some degree. Not all enemy combatants are aliens and vice versa.

Habeas is denied to only those individuals who fall within the overlap between "alien" and "enemy combatant".

The "U.S. citizen" circle, by definition, does not ever overlap with the "alien" circle. However, it does overlap with the "enemy combatant" circle to some degree.

Sure, Bush can label a U.S. citizen as an enemy combatant but that just means that individual is a U.S.-citizen-enemy-combatant...and an individual has to be an alien-enemy-combatant to lose habeas corpus.

I look and look but just don't see how it applies to U.S. citizens.

[onenote]

99. why the provision defining enemy combatants isn't limited to aliens

The fact that unlawful enemy combatants is defined without specific reference to citizenship seems to be the point that is causing so many to conclude that the legislation impinges on the rights of US citizens. As others have pointed out, however, the bill limits the jurisdiction of the MCA, the restrictions on habeas corpus, and pretty much everything else in it to "alien" unlawful enemy combatants. So, why didn't they just make "alien" part of the definition of unlawful enemy combatant?

The answer lies with the provision that gives the executive branch through its Combatant Status Review process, the sole authority to decide who is an unlawful enemy combatant. Congress wanted to take that determination out of the hands of judges. However, if they had included alien in the definiton, they also would've taken the question of whether or not someone is a citizen, and thus entitled to their habeas corpus rights, out of the hands of the courts. So they separated the term alien out of the definition, which means that while someone designated an unlawful enemy combatant can't challenge that designation, they can argue that they are a citizen and thus (a)not subject to the jurisdiction of the military commissions and (b) entitled to habeas corpus rights.

[wordpix]

53. i hope the idiotic Congressmen who didn't bother reading the Patriot Act

read this one. I think the way the MCA is written, BushCo could declare us all enemy combatants if he wanted and our constitutional rights would be gone.
:scared:

[onenote]

100. nope

Only non-citizens lose their rights, which is reason enough to have opposed this bill and for it to be overturned by the courts.

[OzarkDem]

104. Not true

They still have rights and can appeal.

[OzarkDem]

88. That's why it won't stand up in court

[ProSense]

58. It clearly does away with habeas corpus for foreign-born residents:

Senator Leahy

Going forward, the bill departs even more radically from our most fundamental values. It would permit the President to detain indefinitely – even for life – any alien, whether in the United States or abroad, whether a foreign resident or a lawful permanent resident, without any meaningful opportunity for the alien to challenge his detention. The Administration would not even need to assert, much less prove, that the alien was an enemy combatant; it would suffice that the alien was “awaiting determination” on that issue. In other words, the bill would tell the millions of legal immigrants living in America, participating in American families, working for American businesses, and paying American taxes, that our Government may at any minute pick them up and detain them indefinitely without charge, and without any access to the courts or even to military tribunals, unless and until the Government determines that they are not enemy combatants.

Senator Kerry:

Another significant problem with this bill is the unconstitutional elimination of the writ of habeas corpus. No less a conservative than Ken Starr got it right: “Congress should act cautiously to strike a balance between the need to detain enemy combatants during the present conflict and the need to honor the historic privilege of the writ of habeas corpus.” Ken Starr says “Congress should act cautiously.” How cautiously are we acting when we eliminate any right to challenge an enemy combatant’s indefinite detention? When we eliminate habeas corpus rights for aliens detained inside or outside the United States so long as the government believes they are enemy combatants? When we not only do this for future cases but apply it to hundreds of cases currently making their way through our court system?

The Constitution is very specific when it comes to Habeas Corpus. It says “he 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.” We are not in a case of rebellion. Nor are we being invaded. Thus, we really don’t have the constitutional power to suspend the Great Writ. And, even if we did, the Constitution allows only for the writ to be suspended. It does not allow the Writ to be permanently taken away. Yet, this is exactly what the bill does. It takes the writ away—forever—from anyone the Administration determines is an “enemy combatant.” Even if they are lawfully on US soil and otherwise entitled to full Constitutional protections and even if they have absolutely no other recourse.

State Dept. website:

One controversial provision of the Military Commission Act would prevent detainees from challenging their imprisonment in U.S. federal courts, a right known as habeas corpus.

Text of bill (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s3930es.txt.pdf">PDF):

Snip...

a) In General- No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.

Snip...

SEC. 7. HABEAS CORPUS MATTERS.

(a) In General- Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and the subsection (e) added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477) and inserting the following new subsection (e):

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

`(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.

(b) Effective Date- The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.

[OzarkDem]

91. Thanks for checking on this and cutting through the BS

I trust Brow's judgement, not so much the posts here.