And here is why you don't civilian trial terrorists from Gitmo

[Dr Grump]

Thanks Obama The Stupid.

Don't you believe in your precious constitution?

 

[goldcatt]

WHAT PROCESS IS DUE? Be specific.

None. Absolutely none. And that's precisely what is wrong with your position on this issue.

That makes less sense than you usually make.

If no "process" is "due," then there would be absolutely nothing wrong with my position.

IF SOME process is due, the QUESTION would become "Well, what process? How much process? What is its nature? How is it to be delivered?"

But to say that my position is somehow "wrong" BECAUSE no process at all is due is just meaningless of you.

I'm trying to figure out how to explain this as simply as possible, because it is both really simple and really complicated at the same time.

Due Process is not "due" to an individual or group. There is not one set standard of due process for X person and another for Y person. It doesn't work that way.

Due Process is the set of procedures, rules and safeguards within the system to make sure as much as possible anyway that it is objective and fair. The level of Due Process is determined according to the proceedings and the venue, not the person or class of people involved in the proceedings.

So there is one standard of Due Process for criminal cases in Federal District (civilian) Court, another for matters taken up in Military courts, another for Traffic court, another for Civil court, another for Bankruptcy court, a different standard for evidentiary hearings than for trial itself, and so on. There are even set standards for expulsion hearings in public schools. The person involved matters not, it is the proceeding and the Court (or other venue) where it's taking place that determines the level of process "due".

When we say a person is guaranteed Due Process, it means they are guaranteed the uniform, standard process and protections that have been set for that proceeding taking place in that court. No more, no less, no different.

When you start getting into the difference between procedural and substantive Due Process and these other issues, you're going way past what is required in the case of the Gitmo detainees and into analysis of specific laws and practices themselves - and issues which would also only be brought up on appeal. That has little to nothing to do with how a criminal defendant is tried, you're overthinking it and confusing the issue - and all of us while you're at it.

 

[George Costanza]

None. Absolutely none. And that's precisely what is wrong with your position on this issue.

That makes less sense than you usually make.

If no "process" is "due," then there would be absolutely nothing wrong with my position.

IF SOME process is due, the QUESTION would become "Well, what process? How much process? What is its nature? How is it to be delivered?"

But to say that my position is somehow "wrong" BECAUSE no process at all is due is just meaningless of you.

I'm trying to figure out how to explain this as simply as possible, because it is both really simple and really complicated at the same time.

Due Process is not "due" to an individual or group. There is not one set standard of due process for X person and another for Y person. It doesn't work that way.

Due Process is the set of procedures, rules and safeguards within the system to make sure as much as possible anyway that it is objective and fair. The level of Due Process is determined according to the proceedings and the venue, not the person or class of people involved in the proceedings.

So there is one standard of Due Process for criminal cases in Federal District (civilian) Court, another for matters taken up in Military courts, another for Traffic court, another for Civil court, another for Bankruptcy court, a different standard for evidentiary hearings than for trial itself, and so on. There are even set standards for expulsion hearings in public schools. The person involved matters not, it is the proceeding and the Court (or other venue) where it's taking place that determines the level of process "due".

When we say a person is guaranteed Due Process, it means they are guaranteed the uniform, standard process and protections that have been set for that proceeding taking place in that court. No more, no less, no different.

When you start getting into the difference between procedural and substantive Due Process and these other issues, you're going way past what is required in the case of the Gitmo detainees and into analysis of specific laws and practices themselves - and issues which would also only be brought up on appeal. That has little to nothing to do with how a criminal defendant is tried, you're overthinking it and confusing the issue - and all of us while you're at it.

Well stated. And correct.

Let's see how he twists, turns and bloviates his way around it. He never fails me.

 

[George Costanza]

Judge bans key witness from detainee's NY trial - Yahoo! News

The Judge barred the key witness. Not because he was not going to tell the truth, but because they learned of him from harsh interrogation methods.

The Terrorist was not captured by civilian forces, he was not captured in the United States. He is an enemy combatant. The Judge has no choice but to throw out most of the Governments case. And that is EXACTLY why these cases do not belong in Federal Courts.

So let's get the case into some court somewhere where the prosecution can USE evidence obtained by torture.

Don't you people have any conscience whatsoever? Authoritarian bastards.

 

[goldcatt]

That makes less sense than you usually make.

If no "process" is "due," then there would be absolutely nothing wrong with my position.

IF SOME process is due, the QUESTION would become "Well, what process? How much process? What is its nature? How is it to be delivered?"

But to say that my position is somehow "wrong" BECAUSE no process at all is due is just meaningless of you.

I'm trying to figure out how to explain this as simply as possible, because it is both really simple and really complicated at the same time.

Due Process is not "due" to an individual or group. There is not one set standard of due process for X person and another for Y person. It doesn't work that way.

Due Process is the set of procedures, rules and safeguards within the system to make sure as much as possible anyway that it is objective and fair. The level of Due Process is determined according to the proceedings and the venue, not the person or class of people involved in the proceedings.

So there is one standard of Due Process for criminal cases in Federal District (civilian) Court, another for matters taken up in Military courts, another for Traffic court, another for Civil court, another for Bankruptcy court, a different standard for evidentiary hearings than for trial itself, and so on. There are even set standards for expulsion hearings in public schools. The person involved matters not, it is the proceeding and the Court (or other venue) where it's taking place that determines the level of process "due".

When we say a person is guaranteed Due Process, it means they are guaranteed the uniform, standard process and protections that have been set for that proceeding taking place in that court. No more, no less, no different.

When you start getting into the difference between procedural and substantive Due Process and these other issues, you're going way past what is required in the case of the Gitmo detainees and into analysis of specific laws and practices themselves - and issues which would also only be brought up on appeal. That has little to nothing to do with how a criminal defendant is tried, you're overthinking it and confusing the issue - and all of us while you're at it.

Well stated. And correct.

Let's see how he twists, turns and bloviates his way around it. He never fails me.

Maybe the rest of my argument will make more sense now anyway. Coming from where he was, I can understand why he thought I was ducking - but he was looking for something that doesn't exist.

 

[goldcatt]

Judge bans key witness from detainee's NY trial - Yahoo! News

The Judge barred the key witness. Not because he was not going to tell the truth, but because they learned of him from harsh interrogation methods.

The Terrorist was not captured by civilian forces, he was not captured in the United States. He is an enemy combatant. The Judge has no choice but to throw out most of the Governments case. And that is EXACTLY why these cases do not belong in Federal Courts.

So let's get the case into some court somewhere where the prosecution can USE evidence obtained by torture.

Don't you people have any conscience whatsoever? Authoritarian bastards.

My contention is this evidence would be tossed or most of it anyway even in the military courts. I know there are differences in the evidentiary rules, the ones I know about primarily dealing with the diminished expectation of privacy and 4th Amendment issues, but reliability of evidence and disapproval of coercion are fundamental to the justice system in general. I can't see there would be much difference in something that basic.

 

[George Costanza]

Judge bans key witness from detainee's NY trial - Yahoo! News

The Judge barred the key witness. Not because he was not going to tell the truth, but because they learned of him from harsh interrogation methods.

The Terrorist was not captured by civilian forces, he was not captured in the United States. He is an enemy combatant. The Judge has no choice but to throw out most of the Governments case. And that is EXACTLY why these cases do not belong in Federal Courts.

So let's get the case into some court somewhere where the prosecution can USE evidence obtained by torture.

Don't you people have any conscience whatsoever? Authoritarian bastards.

My contention is this evidence would be tossed or most of it anyway even in the military courts. I know there are differences in the evidentiary rules, the ones I know about primarily dealing with the diminished expectation of privacy and 4th Amendment issues, but reliability of evidence and disapproval of coercion are fundamental to the justice system in general. I can't see there would be much difference in something that basic.

The very same military that obtained the information to begin with? The same military whose manuals PRESCRIBE waterboarding and similar techniques?

I am somewhat famliar with military law, but not this particular aspect. Nonetheless, I wouldn't be so quick to assume that this evidence would not be admissible in a military tribunal.

 

[Liability]

My edit came too late. My apologies, didn't mean to sneak it in on you.

Unless specifically authorized (as with POWs, for example), we are Constitutionally barred from holding anyone in detention by force without the right of habeas corpus and without charge and trial. That is clear. So either a new law must be put in place to create that exemption that will pass constitutional muster, which was not done prior to their detention on US sovereign territory, or they must be treated as criminal defendants in order to be able to keep them detained but remain within the constitution. Again, connecting those dots is not rocket science.

Unless you want to treat them as POWs after all, but then you have a whole 'nother set of issues.

Now, where is that authorization to detain "Enemy Combatants" without habeas rights, charge or trial? That's right....it was claimed and the Gitmo cases slammed that door shut. So criminal defendants they are, unless you'd prefer they were released?

Did you know that Congress has forbidden the Courts from addressing HABEAS issues with regard to certain classes of individuals -- specifically these very types of detainees?

See, for example, Detainee Treatment Act of 2005.

In that light, please tell me again how these guys can assert the Great Writ?

Boumediene v. Bush

BOUMEDIENE v. BUSH

The portion of the MCA of 2006 stripping the detainees of their habeas rights was tossed.

The MCA of 2009 was passed to reinstate habeas for detainees per the SCOTUS ruling

Text:
Military Commissions Act 2009

What else you got?

For the moment, not much. I had forgotten Boudienne. Thus, your rebuttal was purdy good!

I will say this, however. IF the Act of Congress which provided the "procedures for reviewing detainees’ status" HAD BEEN found to be "an adequate and effective substitute for the habeas writ" then the suspension of habeas would not have been a problem. So although your rebuttal in this instance is still on the mark, it doesn't HAVE to be that way.

And that would bring us back to the very simple question of WHAT process is due.

But, for now: nicely done GC.

 

[goldcatt]

So let's get the case into some court somewhere where the prosecution can USE evidence obtained by torture.

Don't you people have any conscience whatsoever? Authoritarian bastards.

My contention is this evidence would be tossed or most of it anyway even in the military courts. I know there are differences in the evidentiary rules, the ones I know about primarily dealing with the diminished expectation of privacy and 4th Amendment issues, but reliability of evidence and disapproval of coercion are fundamental to the justice system in general. I can't see there would be much difference in something that basic.

The very same military that obtained the information to begin with? The same military whose manuals PRESCRIBE waterboarding and similar techniques?

I am somewhat famliar with military law, but not this particular aspect. Nonetheless, I wouldn't be so quick to assume that this evidence would not be admissible in a military tribunal.

No, the CIA did the interrogation in this case. In one of its "secret locations". The military doesn't interrogate Gitmo detainees, just house, feed and water them. CIA handles the interrogations, at least all the ones I know of.

 

[goldcatt]

Did you know that Congress has forbidden the Courts from addressing HABEAS issues with regard to certain classes of individuals -- specifically these very types of detainees?

See, for example, Detainee Treatment Act of 2005.

In that light, please tell me again how these guys can assert the Great Writ?

Boumediene v. Bush

BOUMEDIENE v. BUSH

The portion of the MCA of 2006 stripping the detainees of their habeas rights was tossed.

The MCA of 2009 was passed to reinstate habeas for detainees per the SCOTUS ruling

Text:
Military Commissions Act 2009

What else you got?

For the moment, not much. I had forgotten Boudienne. Thus, your rebuttal was purdy good!

I will say this, however. IF the Act of Congress which provided the "procedures for reviewing detainees’ status" HAD BEEN found to be "an adequate and effective substitute for the habeas writ" then the suspension of habeas would not have been a problem. So although your rebuttal in this instance is still on the mark, it doesn't HAVE to be that way.

And that would bring us back to the very simple question of WHAT process is due.

But, for now: nicely done GC.

What if......but it wasn't. There was no rationale found for suspending Art 1 Sec 9 Cl 2. So that's all she wrote.

If wishes were horses.

 

[George Costanza]

My contention is this evidence would be tossed or most of it anyway even in the military courts. I know there are differences in the evidentiary rules, the ones I know about primarily dealing with the diminished expectation of privacy and 4th Amendment issues, but reliability of evidence and disapproval of coercion are fundamental to the justice system in general. I can't see there would be much difference in something that basic.

The very same military that obtained the information to begin with? The same military whose manuals PRESCRIBE waterboarding and similar techniques?

I am somewhat famliar with military law, but not this particular aspect. Nonetheless, I wouldn't be so quick to assume that this evidence would not be admissible in a military tribunal.

No, the CIA did the interrogation in this case. In one of its "secret locations". The military doesn't interrogate Gitmo detainees, just house, feed and water them. CIA handles the interrogations, at least all the ones I know of.

Ah - correct.

 

[Sallow]

This should clear things up..

Well it won't but what the heck:

Amendment 14 - Citizenship Rights. Ratified 7/9/1868. Note History

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Constitution does make an exception:

Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

But these are covered by the Department of Defense and Geneva.

What the Bush Justice department did was an aberration.

And that's why it's a mess.

 

[George Costanza]

This should clear things up..

Well it won't but what the heck:

Amendment 14 - Citizenship Rights. Ratified 7/9/1868. Note History

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What the Bush Justice department did was an aberration.

And that's why it's a mess.

The 14th starts off talking about (and defining) "citizens." But, in the latter portion, where Due Process and Equal Protection are discussed, it applies these concepts to "any person," NOT just to "citizens."

This fact is conveniently overlooked by many here who would deny Constitutional protections to those otherwise deserving of them.

 

[George Costanza]

Did you know that Congress has forbidden the Courts from addressing HABEAS issues with regard to certain classes of individuals -- specifically these very types of detainees?

See, for example, Detainee Treatment Act of 2005.

In that light, please tell me again how these guys can assert the Great Writ?

Boumediene v. Bush

BOUMEDIENE v. BUSH

The portion of the MCA of 2006 stripping the detainees of their habeas rights was tossed.

The MCA of 2009 was passed to reinstate habeas for detainees per the SCOTUS ruling

Text:
Military Commissions Act 2009

What else you got?

For the moment, not much. I had forgotten Boudienne. Thus, your rebuttal was purdy good!

I will say this, however. IF the Act of Congress which provided the "procedures for reviewing detainees’ status" HAD BEEN found to be "an adequate and effective substitute for the habeas writ" then the suspension of habeas would not have been a problem. So although your rebuttal in this instance is still on the mark, it doesn't HAVE to be that way.

And that would bring us back to the very simple question of WHAT process is due.

But, for now: nicely done GC.

Well, I'll be damned. He did fail me.

 

[goldcatt]

This should clear things up..

Well it won't but what the heck:

Amendment 14 - Citizenship Rights. Ratified 7/9/1868. Note History

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Constitution does make an exception:

Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

But these are covered by the Department of Defense and Geneva.

What the Bush Justice department did was an aberration.

And that's why it's a mess.

The 14th isn't implicated here, there is no State involvement. It's all under the 5th. Picky point perhaps, but best to point that out before somebody tries to run with it.

And I'm not sure exactly how Geneva and DoD cover any of this mess? If DoD had been in charge there wouldn't be a mess.

What Bush did is an aberration. Actually if you look at it the right way he was a freaking genius....but what he arranged was a probably unsolvable mess he could dump neatly in his successor's lap. Not that Obama has been doing a wonderful job with it, but Bush's delaying tactic was perfectly timed and as neat as it gets. Whoever ran this fiasco was a brilliant tactician. Lousy lawyer and authoritarian asshole, but a brilliant tactician. Gotta hand him that.

 

[Sallow]

This should clear things up..

Well it won't but what the heck:

Amendment 14 - Citizenship Rights. Ratified 7/9/1868. Note History

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What the Bush Justice department did was an aberration.

And that's why it's a mess.

The 14th starts off talking about (and defining) "citizens." But, in the latter portion, where Due Process and Equal Protection are discussed, it applies these concepts to "any person," NOT just to "citizens."

This fact is conveniently overlooked by many here who would deny Constitutional protections to those otherwise deserving of them.

Quite correct.

And this was the point of that post.

 

[goldcatt]

Boumediene v. Bush

BOUMEDIENE v. BUSH

The portion of the MCA of 2006 stripping the detainees of their habeas rights was tossed.

The MCA of 2009 was passed to reinstate habeas for detainees per the SCOTUS ruling

Text:
Military Commissions Act 2009

What else you got?

For the moment, not much. I had forgotten Boudienne. Thus, your rebuttal was purdy good!

I will say this, however. IF the Act of Congress which provided the "procedures for reviewing detainees’ status" HAD BEEN found to be "an adequate and effective substitute for the habeas writ" then the suspension of habeas would not have been a problem. So although your rebuttal in this instance is still on the mark, it doesn't HAVE to be that way.

And that would bring us back to the very simple question of WHAT process is due.

But, for now: nicely done GC.

Well, I'll be damned. He did fail me.

Shoulda bet on it.

Where's Dive when you need him?

 

[Sallow]

This should clear things up..

Well it won't but what the heck:

Amendment 14 - Citizenship Rights. Ratified 7/9/1868. Note History

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Constitution does make an exception:

Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

But these are covered by the Department of Defense and Geneva.

What the Bush Justice department did was an aberration.

And that's why it's a mess.

The 14th isn't implicated here, there is no State involvement. It's all under the 5th. Picky point perhaps, but best to point that out before somebody tries to run with it.

And I'm not sure exactly how Geneva and DoD cover any of this mess? If DoD had been in charge there wouldn't be a mess.

What Bush did is an aberration. Actually if you look at it the right way he was a freaking genius....but what he arranged was a probably unsolvable mess he could dump neatly in his successor's lap. Not that Obama has been doing a wonderful job with it, but Bush's delaying tactic was perfectly timed and as neat as it gets. Whoever ran this fiasco was a brilliant tactician. Lousy lawyer and authoritarian asshole, but a brilliant tactician. Gotta hand him that.

Geneva and the Uniform Code of Military Justice do cover that status of Prisoners of war. And agreed..that the Bush administration's wrangling of the legal status of persons captured by US armed forces makes a sticky wicket of that status.

 

[goldcatt]

This should clear things up..

Well it won't but what the heck:



The Constitution does make an exception:



But these are covered by the Department of Defense and Geneva.

What the Bush Justice department did was an aberration.

And that's why it's a mess.

The 14th isn't implicated here, there is no State involvement. It's all under the 5th. Picky point perhaps, but best to point that out before somebody tries to run with it.

And I'm not sure exactly how Geneva and DoD cover any of this mess? If DoD had been in charge there wouldn't be a mess.

What Bush did is an aberration. Actually if you look at it the right way he was a freaking genius....but what he arranged was a probably unsolvable mess he could dump neatly in his successor's lap. Not that Obama has been doing a wonderful job with it, but Bush's delaying tactic was perfectly timed and as neat as it gets. Whoever ran this fiasco was a brilliant tactician. Lousy lawyer and authoritarian asshole, but a brilliant tactician. Gotta hand him that.

Geneva and the Uniform Code of Military Justice do cover that status of Prisoners of war. And agreed..that the Bush administration's wrangling of the legal status of persons captured by US armed forces makes a sticky wicket of that status.

I only wish they'd been classified prisoners of war. It would have made everything so simple.