In my last post on the Court's decision in Boumedienne, I suggested that Congress could, if it wanted to, revoke War on Terror detainees' rights to a hearing in federal court by suspending the writ of habeas corpus. In his own more recent post, Jonathan Adler raises some interesting questions about whether Congress really could suspend the writ. As Jonathan puts it:
The Suspension Clause provides that "[t]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." This language seems to impose two separate conditions on the use of the clause: 1) "Rebellion or Invasion" and 2) "public Safety." Assuming, for the sake of argument, that these requirements are justiciable (an assumption I don't necessarily accept) what showing would the government have to make?
Before trying to address this issue, I should note that the meaning of these two requirements of the Suspension Clause have never been litigated in the Supreme Supreme Court, and that I am not a habeas expert. Therefore, I'm far from certain that I'm right about what I say below, and would welcome correction from specialists in the field.
That said, I think Jonathan asks exactly the right questions. However, I am less skeptical than he is that the requirements in question could be met. The War on Terror surely doesn't qualify as a "Rebellion," but Al Qaeda's attacks on New York and Washington DC and its attempts to attack other targets in the United States could potentially qualify as an "Invasion." A relatively small invasion to be sure (in terms of the number of enemy combatants involved). But a big one in so far as it has killed more Americans than any other incursion of enemy forces onto US soil in our history, at least since the War of 1812.
One could potentially interpret the requirement of "Rebellion or Invasion" to mean that the writ can only be suspended in those areas where the invasion is ongoing; Jonathan, in his post, seems to make this assumption or at least raise the possibility that it is correct. If the assumption is valid, it rules out suspension of the writ with respect to enemy personnel captured abroad or anywhere in the United States other than New York City and Washington, DC on the day of September 11, 2001 itself. However, I don't think the assumption is valid. No such restriction on the scope of the suspension power is is evident in the text. And it would be somewhat absurd to hold that Congress can only suspend the write of habeas corpus in those parts of the United States where US authorities have no ability to detain people anyway because the areas in question are occupied by enemy forces. I also don't think that the constitutional validity of suspension depends on whether the detainees are held at Guantanamo or some other site. Nothing in the clause suggests that suspension is only permitted if the detainees are held in the same general area as the location of the rebellion or invasion that triggered the Suspension Clause in the first place.
A related question is whether the "invasion" has ended now that (as far as we know) al Qaeda forces are no longer present on US soil in any significant numbers. My tentative view is that the emergency triggered by an invasion can continue so long as the war that the invasion was a part of does. It doesn't necessarily require the continued presence of enemy forces on US soil, though it probably does require a continued serious threat that they may return as part of the same ongoing conflict.
The second requirement - that "the public Safety may require" suspension - is even more difficult to assess. Much depends on the question of how much deference courts should grant to executive or congressional determinations that the public safety really would be threatened if the writ is not suspended. It seems to me that the text does mandate some degree of deference because it states that the standard is that "the public Safety may require" suspension. This suggests that the government need not definitely prove that suspension is essential to public safety.
At the same time, I don't think that the language of the Suspension Clause justifies near-absolute judicial deference to a congressional determination that the public safety requires suspension. My best guess is that the "public safety" prong of the Clause could be satisfied by something similar to proof by a preponderance of evidence. As a practical matter, I think that the Court would defer to Congress' judgment if the suspension were narrowly targeted and supplemented by some other form of due process protection for detainees.
As Jonathan indicates, the above analysis assumes that these issues are justiciable at all. It could be argued that they are within the exclusive judgment of Congress. I won't argue this issue in detail. But I doubt that the rebellion/invasion and "public safety" requirements of the Clause are completely nonjusticiable. If they were, Congress could decide that virtually any real or imagined emergency is a threat to "public safety" and then use it as an excuse to suspend the writ of habeas corpus.
To say that suspension of the writ would (probably) be constitutional is not to say that it should be done. I'm not sure that it should be enacted at all. If Congress does attempt suspension, I believe that any such effort should be narrowly focused, and supplemented with other types of protections for the rights of detainees.
Related Posts (on one page):
- Could Congress Suspend the Writ of Habeas Corpus in the War on Terror?
- Can Congress Suspend Habeas in Guantanamo?
- It's Unlikely, But Worth Noting:
- Boumediene, Executive Power, and Congressional Power:
- Key Quotes from Boumediene v. Bush:
You mean, like the MCA and DTA? A better move would be to impeach Justice Kennedy.
I think Ex parte Milligan answers that in the affirmative.
Well, if the Supreme Court has jurisdiction over battles in far-off foreign lands, and war criminals imprisoned in Cuba, why can't Congress suspend habeas in Iraq and/or Afghanistan?
I guess you can't accept those answers (or at least can't admit to accepting them) if you're a legal academic...
Larry Rosenthal
Chapman University School of Law
Actually, Milligan doesn't address the question of Congress' power to suspend of the writ. It held instead that Congress had not authorized military trials in areas where the civilian courts were still functioning, and also said, in dicta, that Congress could not require military trials in areas where the civilian courts were still functioning and there were no hostilities.
Suspending the writ entirely is different from authorizing military trials. Moreover, unlike in Milligan's case (arrested, I think, in Indiana) there are no US civilian courts functioning in the areas where the vast majority of the Gitmo detainees were apprehended.
We are discussing what the answer to this question should be, which is a distinct question from the issue of what the Supreme Court will actually do. Similarly, people can discuss the issue of what policies should be adopted on any given issue despite the fact that the actual policies enacted will depend on what Congress and the president want to do. Positive and normative analysis are two distinct enterprises, even if they have some important interconnections.
Fair enough, but the phrasing of the question you and Jonathan are discussing--"Could Congress suspend the writ of Habeas Corpus in the War on Terror?"--suggests a more practical than normative emphasis. Moreover, if the real question is at hand is a purely normative one--"ought Congress have the power to suspend the writ of Habeas Corpus in the War on Terror?"--then I'd think that legal reasoning would comprise only a small part of the answer.
The implicit question that you and Jonathan seem to be discussing is rather a hybrid positive/normative one: "if we were to assume that the answer to our question should (normatively) be determined by (some not-entirely-well-defined notion of) legal reasoning, then what (positively) would that answer be?" This question tells us neither what any Supreme Court justice, let alone a majority, actually would decide, nor what any of them actually should decide, except insofar as they embrace the normative premise on which your argument is based (that is to say, hardly ever, in practice--although routinely, of course, in lip service).
Given, then, that the normative premise behind your question is a bit like medieval Catholic Church dogma--often ceremonially endorsed, but neither particularly compelling as a moral imperative, nor practically influential regarding its own authorities' behavior--why would anyone take it at all seriously?
Does any violent crime by an immigrant count as an act of invasion? Or only a crime that is directed at a government target, or a military target such as the Pentagon? Or only one by an illegal immigrant?
If an immigrant blows up an INS office as an act of protest, is that invasion? How about if it's an illegal immigrant? Suppose it's not an INS office, but a radio station that airs (illegal) government-sponsored anti-immigrant propaganda?
If your Canadian cousin comes and visits you and won't go home, is that invasion?
The second question goes to issues of justiciability and judicial deference to political branch determinations. It may very well be that courts are barred from reviewing Congressional suspension of the writ of habeas corpus, or that they must defer to political branch determinations on the question of public safety.
However, even if we could be certain there would be no judicial review, it would still be important to interpret the Suspension Clause. Congress and the President have a duty to adhere to the entire Constitution, whether or not any given provision is justiciable. The important preliminary question is not "would a court overturn a Congressional suspension of the writ?" but rather "what substantive limits does the Suspension Clause place on Congress's power?" Prof. Somin's analysis of the "Rebellion or Invasion" prong gets at both questions, but his analysis of the "public Safety" prong focuses exclusively on the standard of review to be applied by a court. We (and Congress) should first focus on what the phrase actually means.
I should note that I'm certain Prof. Somin knows all of this, and that he was likely just responding to Prof. Adler's question about "what showing" (before a court) the government would have to make. I merely wanted to draw out the distinction for the benefit of other readers.
Mulligan spoke to the exact question posed. Martial law cannot be imposed on an area where there are no active hostilities and where federal courts are still operating.
HERE'S ANOTHER TAKE: In late May or early June of 1861, President Lincoln secretly ordered an arrest warrant for Roger B. Taney, the circuit-riding Chief Justice of the United States Supreme Court. The arrest order was in response to Taney's Circuit Judge ruling in Ex parte Merryman, which found Lincoln's suspension of the writ of habeas corpus to be unconstitutional.
The primary source document is a single manuscript written in the 1880s by Ward Hill Lamon, Lincoln's friend, bodyguard, and United States Marshal for the District of Columbia during his administration. After consideration, Lincoln determined upon the arrest of the Chief Justice and a warrant or order was issued for his arrest. Then arose the question of service:
'Who should make the arrest and where should the imprisonment be? This was done by the President with instructions to use his own discretion about making the arrest unless he should receive further orders from him.'
The warrant was never served, according to the United States Marshal. The memoir of Taney himself, completed from his unfinished autobiography by Samuel Tyler in 1872, likewise refers to the Chief Justice's fears of arrest.
During Lincoln's administration several prominent political adversaries were arrested, including Congressman Clement Vallandigham, and at least one other federal judge - William Matthew Merrick of the United States Circuit Court for the District of Columbia - was placed under house arrest for defying the suspension.
Cheers.
While the constitution does not speak to the issue, there is an obviousness to the question that should be clear after just a moment's thought--the enemy gets a vote. We are at war when the Congress raises the funds to make war, and whether they do or don't, we are at war when war is made on us. The Presidential oath requires the Executive to repel invasions when they are conducted.
Not that the Congress would ever permit itself to fail to oppose such a warlike intrusion...
Yours, TDP, ml, msl, &pfpp
So, with the exception of SJS (sudden jihadi syndrome), many of the plots we see are, indeed, manifestations of an invasion.
And SJS could be considered the result of incitement by a person or institution funded by a foreign power.
As somebody said, this form of warfare has been designed on purpose to fall into the cracks in the GC, the military's Law of Land Warfare, US civil law, war as envisioned by the Peace of Westphalia. That it has been successful in finding those cracks seems to be taken by the liberals as meaning either it isn't happening, or it is happening and, hahahah, the US isn't allowed to do anything about it.
It's not immediately apparent to me that the Suspension Clause can be separated into the two situations that Adler is suggesting. I see two situations, but one of them isn't "the public Safety." If I were to rewrite the clause so that it more closely approximates how I understand it, I might do it like this:
"Unless when in cases of rebellion or invasion which are severe enough to threaten the public safety."
After all, there can be an invasion or rebellion which is relatively small, contained, and not threatening to the safety of the nation. At the time of our nations' founding, I can imagine the Founders being worried that a minor invasion from the Brits in Canada could be used as an excuse to deny habeas in South Carolina.
Is there some settled discussion that I'm unaware of which has parsed the Suspension Clause such that "public Safety" is a potential trigger for suspension, rather than a qualifier for suspension?
"[T]here are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power."
Larry Rosenthal
Chapman University School of Law
Torturing the sentence to justify wholesale suspension of a 700 year old right (especially by a bunch of supposed libertarians) would be laughable if it wasn't so sad.
I guess anything is okay as long as they don't take away your guns.
We are discussing what the answer to this question should be, which is a distinct question from the issue of what the Supreme Court will actually do. Similarly, people can discuss the issue of what policies should be adopted on any given issue despite the fact that the actual policies enacted will depend on what Congress and the president want to do. Positive and normative analysis are two distinct enterprises, even if they have some important interconnections."
Gotta go with Dan on this one. If you are discussing what 'should' be done, then you might as well forgo the legalisms: you are making a normative argument, upon which legal reasoning has nothing to say (thus, for instance, "Should we ramp up the war on drugs" has no answer which depends upon legal reasoning-to paraphrase someone else, my plumber has as valuable opinion on this as a legal scholar does.)
But if you are making a legal argument, or asking a legal question, then you need to discuss the legal infrastructure as it exists ("Does our legal infrastructure support ramping up the war on drugs" is a question related to the actual legal infrastructure in place).: not as it would exist (i.e. if Kennedy were different, or more honest, or whatever) in an alternate universe.
Thus, perhaps, your guiding question should be: "Would the Supreme Court support a congressional suspension of habeas corpus, and if so, what argument would they use to justify their decision?"
This would shift the focus from some kind of legal/logical Platonic ideal of what Constituitional theory leads us to (which is similar to discussing the number of angels on the head of a pin: interesting and even intellectually satisfying, but irrelevant), to the whims, political views, and inclinations of the personalities who have power in the legal infrastructure-which, of course, is where and how decisions are actually made.
Sk
I don't know what you mean by US soil, but the Japanese did invade the Phillipines, a Commonwealth of the USA, in the second world war.
Another question is how much fighting does it take for the "invasion" to continue to justify suspension. To take the extreme example, could Pearl Harbor have continued to justify the suspension of habeas after V-J day because we were still discovering the occasional Japanese or German soldier who was resisting? A line has to be drawn somewhere.
These are supposed to be actual questions, not rhetorical questions. I'm trying to work out the implications of Ilya's view and I think the way Ilya describes it leaves many absolutely vital questions unanswered. I don't think they're unanswerable but they do seem to be unanswered.
I'm raising these questions because they would determine whether, on Ilya's view, our continuing hostilities in Afghanistan and Iraq mean that the 9/11 attacks, assuming they were an "invasion", still justify the suspension of habeas. Other commenters have argued that the supposed current presence of al Qaeda terrorists means we are still being invaded today, but I'm ignoring that point because Ilya's analysis suggests that we don't have to be suffering a present invasion for the Suspension Clause to be triggered.
I think a plain reading of the Suspension Clause is that it defines the conditions under which civilian US territory (where habeas corpus rights exist) can be treated as a battlefield (where habeas corpus rights are absurd.) The notion that it applies to battlefields in far-off foreign lands is particularly kafkaesque.
The question of whether detainees can be moved elsewhere overseas begs the question of whether this court is likely to extend (again) their definition of US soil. By the logic theyve espoused so far, holding NK troops at SK prison camps in the event of war in Korea would surely entitle the POWs to habeas. For that matter you could argue anywhere the US military holds prisoners is equivalent to Guantanamo, as theyve drawn an entirely arbitrary distinction. Almost by definition, you can argue that a US military base or camp is under US control and soveriegnty.
Six years later???
We might as well have suspended the writ on Dec. 7, 1941 and left it suspended.
At some point, the only response to this frantic craze for denying the most basic rights to our prisoners has to be, "Have you no sense of decency at long last?"
That's certainly my question for Roberts and Alito, who signed onto Scalia's despicable dissent. What a disappointment, except to the President and staff who picked them expressly for their slavish devotion to UNLIMITED executive power.
Seems the standard was a lot lower wrt several cities in the last half century.
1. writ does not exist
2. writ exists as defined by english statute of 1679
3. writ exists as defined by the 14th century common law
The bloggers here would rather not answer that question and would instead pretend they're discussing what the Court "should" do. If they have a discussion trying to figure out what the Court would actually do, it would expose the sham of the Court and the fraud that any of their arguments made a darn bit of difference.
A better practical approach would be to determine how to impeach Justice Kennedy or perhaps how to ignore the Court's order.
Wrong.
"are you claiming that there was an ongoing German invasion of Long Island and/or Florida in 1942?"
A highly industrialized nation had mobilized a large, effective armed force for the purpose of invading/occupying their enemies, and were doing so on an ongoing basis. I realize you can't tell the difference between this and some nuts in a cave.
Actually, this form of warfare has been designed on purpose to get us to shred our constitution. And to bankrupt us. And it has made some progress, in those regards.
The first right to disappear upon suspension of the writ will necessarily be the right to keep and bear arms.
I can't wait to see how the putative libertarians here would react to a suspension of the writ by a Dem Congress, using exactly this logic, and the round up of all Republicans as copperhead traitors who endanger our system of government.
Nuts. Absolutely nuts.
I know the left likes to exaggerate (lie like rugs), but even you can't believe yourself on this.
I can't imagine you actually think OBL and crew were lying around trying to figure out the benefit to them of us shredding our constitution. Yeah. That'll spread the ummah alright.
But...maybe I can imagine you believing it.
Well, in either case, nobody else does, even if they pretend to agree with you.
I can't imagine you actually think you're taking a position that has any intellectual consistency. We've been told over and over again that they hate us for our freedom. The source of our freedom is the Constitution. We've also been told over and again that their goal is to replace our system of government with sharia law. Our system of government is based on the Constitution. Anything which undermines the Constitution is a step closer to them getting what we have been told they want.
Hitler: "Don't worry, mein generalen. Every bomb that lands in Berlin is one more nail in the coffin of the American war effort. Wartime decisions: the draft, the conversion of a civilian economy to a wartime economy, anything that reduces American freedoms: is a great victory for our war effort! We should WELCOME American bombs and Armies on German soil!"
come on jukeboxgrad. What you are arguing is a common left-wing trope, but it is absurd on its face.
Sk
We should definitely suspend the writ as to them.
What if the perps are funded by, trained by, recruited by and encouraged by the FBI? I'm thinking of the dolts in Miami.
What the Supreme Court has granted these prisoners is the exact US version of habeas corpus in the particular venue of US federal courts, as distinct from a general right to review from a competent tribunal. The latter is a "basic right" (and it is a right that Guantanamo Bay prisoners have clearly had, and effectively exercised, over the last 6.5 years). Calling something (habeas corpus rights in US federal courts) that 95% of the world's population doesn't have a "basic right" just makes you look silly.
We don't need to do that. We can beat the terrorists blindfolded with one hand tied behind our backs following the Marquis of Queensbury rules, while the Islamo-facists break every rule of civilized conduct. And the Courts seem to be determined to make us prove it.
Congress and the President passed the most recent statute. It seemed to be at least an attempt at compromise of rights vs. safety. To lay this all at the current President's doorstep is inaccurate.
Roberts and Alito's positions seem to be consistent with their philosophy. But Justice Breyer seems to have abandoned his. Why?
They had a formal military alliance with a nation that had invaded the US. Maybe you didn't know that?
"the 'nuts in a cave' killed more American civilians than the 'highly industrialized nation' ever did"
True. I also think that McVeigh "killed more American civilians than the 'highly industrialized nation' ever did." All this means is that Germany killed few American civilians. This doesn't mean it's logical to compare the threat posed by McVeigh to the threat posed by Germany. Are you really claiming those two are equivalent? Because if you're not, your statement is pointless.
"the 'nuts in a cave' had more combatants on the U.S. mainland than the 'highly industrialized nation' did"
Really? Germany never managed to get 19 spies, infiltrators and saboteurs into this country? Are you sure?
Anyway, if you're seriously trying to suggest that our situation today is comparable to WWII, you need to explain why we were told that we should help the war effort by heading to the mall.
Since you say so, it must be true.
The first word of your post is enough to indicate you don't expect to be taken seriously.
"We have convinced them to invade Afghanistan and Iraq"
Yes, that's what OBL wanted us to do, and we obliged. We have created a recruiting and training bonanza for him, beyond his wildest dreams. Porter Goss said "Islamic extremists are exploiting the Iraqi conflict to recruit new anti-U.S. jihadists."
We don't need to do that. We can beat the terrorists blindfolded with one hand tied behind our backs following the Marquis of Queensbury rules, while the Islamo-facists break every rule of civilized conduct. And the Courts seem to be determined to make us prove it.
It's not a question of whether we "need" to ignore the Court's order in order to beat the terrorists (although I'd be willing to entertain that discussion). The Court's order is a threat to the balance of power between the Federal branches because it is a sham decision. The threat isn't only the terrorists, but an out-of-control Court that rules both the Executive and the Legislative branches.
I would advise President Bush to ignore the Court, and park the detainees on a deserted pacific island and wash my hands clean of them. Then I'd try to impeach Justice Kennedy.
Even the NYT admits al Q's falling apart, including failing to recruit.
Try to keep up.
Wrong. The language defines what puts public safety in danger, which may require the suspension of Habeas Corpus: invasion or rebellion.
And rebellion is private individuals/militias taking up arms. A seceding State is not in rebellion but only exercising their un-delegated authority leave the union.
Mission accomplished! Great news. We won. So can we go home now?
Aside from that, you're forgetting (or pretending to forget) how this point came up. OBL got us to do things that were helpful to him and destructive to ourselves. This ruling is a step away from that foolishness.
Osama bin Laden himself stated in an interview on October 21, 2001, before the Patriot Act was passed, that that was part of the purpose of attacking the US:
"I tell you, freedom and human rights in America are doomed," bin Laden said as the U.S. war on terrorism raged in Afghanistan. "The U.S. government will lead the American people in -- and the West in general -- into an unbearable hell and a choking life."
In fact, the stormtroopers are at my door.
No, juke, we're not done. al Q and its similar buddies funded by, among others, Iran are still strong enough to turn Iraq into your kind of country absent our help. Can't have that.
I suppose that for Prof. Somin to get upset about the erosion of the writ, the prisoners would have to be held in private prisons, built on ground obtained through the exercise of eminent domain.
English translation: 'it's OK that my government arrested another citizen, and held him for years without access to a civilian court, because it hasn't happened to me.'
Paine said this: "He that would make his own liberty secure must guard even his enemy from oppression, for if he violates this duty he establishes a precedent that will reach to himself.”
Why do you hate America?
I'd be more upset if the result of this sort of nonsense--like yours--wasn't so obviously a ploy to allow terrorists freer rein.
I imagine a lot of folks, including you, are anticipating the defense insisting on plowing through irrelevant classified material in order to get it to our enemies.
Nope.
If I were to take somebody seriously on this, it wouldn't be you.
2. The government cannot simply shift prisoners from one jail to another to evade court review. Obviously, this doesn't preclude release, as the Circuit has already held in Qassim.
3. The Quirin defendants pursued a habeas case, and lost on the merits. I'm not sure why so many people insist that German POWs could not have petitioned for habeas: they'd have to claim that they were not members of the German Army, a claim that would be frivolous if brought by soldiers in uniform.
4. Since US v. Williams and Lockington it's been good law that an enemy alien can raise a habeas challenge regarding his status. That was during a war with a real invasion.
5. The only real question in the case, and before Congress on suspension, is whether the government can hide from the constitution by going offshore to an area that is (a) at peace; (b) completely under US control; (c) generally subject to US law; and (d) not under the control of any other nation. In 2004 the Supreme Court said no, and Congress and while the Administration bought themselves a four year delay by trying to overrule that decision, the delay is over, and it's time to face up to the requirements of law. Those who are properly held under the law of war will lose their habeas cases. Those who are not, for whatever reason, ought to have been sent home years ago.
First they came for Padilla…
These become "hard cases" only through the Bush Remnant's determined PR onslaught. That people like Padilla are entitled to trials was previously beyond question.
An armed enemy combatant, running from one location to another, not actively firing at US troops. Legit target or not?
Is this going to extend into domestic police rules for lethal force?
For those who say, of course not, let me say that I don't believe it isn't a goal. So if it doesn't happen, it's not because some aren't trying. It's because we're lucky.
Really? And you know that how? Probably the same way that you 'know' that we've waterboarded 'only' three people: Bush said so (either directly, or via his hired hands).
And why is one instance of unconstitutional imprisonment OK with you? If one is OK, why not 100, or 100, 000?
"Hard cases, as they say.... "
Comprehending that every American has a right to trial is "hard" only for the likes of you.
"I'd be more upset if the result of this sort of nonsense--like yours--wasn't so obviously a ploy to allow terrorists freer rein."
If they are guilty, how are we endangered by allowing them their day in court?
"I imagine a lot of folks, including you, are anticipating the defense insisting on plowing through irrelevant classified material in order to get it to our enemies."
If you don't trust our judges to make wise decisions in that regard (balancing those competing interests regarding classified material), you would probably be more comfortable living in a country without an independent judiciary. Let me recommend North Korea.
The Court held that while the suspension was legal when promulgated shortly after Pearl Harbor, when Hawaii was indeed in clear immediate danger of invasion, and remained legal for some time afterwards, by the time Duncan was subjected to military arrest in 1944, the situation in the Pacific had sufficiently stabilized that danger of invasion was no longer imminent. The Court held that had the right to determine whether the conditions of the Suspension Clause were in fact met, and had the right to invalidate acts of martial law when it found that they hadn't been.
In my view such a decision may well be correct as applied to citizens. To apply to nonresident aliens is effectively to treat invading enemy armies as criminals with legal rights, giving judges the right to enjoin soldiers from shooting the enemy until they have determined the enemy's claim that they are not here to take over country and put us in concentration camps but are in fact merely here for a picnic, and that any destruction of american cities we might have experienced was merely an unfortunate accident.
I must trust judges...?
The "wise" decisions usually result in the case being dropped, which is the object of demanding to see the secret docs and broadcast them.
Andrew: Some people have tried to say that the mass bombing of cities was a violation of the GC. True, or not. But I imagine in some other venue you'd be arguing it was true.
I see in the text the defintion that triggers the Congress to, potentially, suspend Habeas Corpus.
It has nothing to do with war on foreign soil.
Unless you are an anarchist, you are inherently putting your trust in government, to some extent. You seem to have essentially taken the position that the executive branch is inherently trustworthy, and the judicial branch is not. Or maybe you just think that people named Bush are inherently trustworthy, or that the GOP is inherently trustworthy. In any case, one of many things you haven't explained is why any intellectually consistent person should treat the executive branch as inherently trustworthy while treating the judicial branch as the opposite of that. Unless you're simply an authoritarian and you hate our system of government, and you're nostalgic for the good old days, when we had rulers who didn't have to answer to judges.
David Nieporent,
If I recall correctly, several hundred thousand Americans died in the Second World War. A quick web search confirms my recollection.
Those nuts in caves have a long way to go before they can match that.
Did you meant to compare 9/11 to the Pearl Harbor attack? If so, you're on much better ground. About 2400 US servicemen were killed at Pearl Harbor, about 3,000 died on 9/11, and the majority of the latter were civilians.
That's a better comparison.