[!CrackMonkey!] OK to Nuke Redmond

[Rick Moen]

Quoting CEO of Brooklyn - Provider of Power to the NYC Region (ruben at mrbrklyn.com):

> It may have seemed that this was my motivation but this was not why I
> quoted him. I posted his message because I had just read it prior to
> Don's post, and I wished to stimulate a conversation such as we've had,
> and to learn more about the case, hopefuly in a balenced way with the
> least amount of hysterics (such as it may be in crackmonkey :)).

Yes.  Thank you.

> However, when I was in Bourdeux France at LSM I had French people, some
> of them instructing on FS security to large audiences, tell me just
> this, that we are sweeping the arabs off the streets in New York and
> throwing them into our 'Dungeons'.

Obviously, that is a serious exaggeration.  

The evidence suggest that there has been a sweep of dozens and possibly
up to a hundred or two citizens and permanent residents (overwhelmingly 
Arabs and/or Moslems), based on Executive Branch suspicions that may or
may not be well founded of their being relevant to terrorism
investigations, holding them secretly for extended terms without charge 
or other due process.

I see that as a problem, but you're right that it's only fair to see it
in proper perspective.

> The UMCJ actually applies to all code of conduct with regard to military
> activities, including the treatement of prisoiners, and the rights of
> prisionors. 

Yes, that's part of what I was trying to say.  But my point is that it
is binding on the conduct of the _jailers_, not (enemy combatant) 
prisoners.  It is a judicial code for _our_ military personnel, to
simultaneously maintain standards of justice and reinforce the chain of
command, there.

_Our_ guys consent to temporary limitation of their Constitutional
liberties through the act of enlisting in the armed forces.  They know
they're under UCMJ from that day until they're discharged.  

For a US citizen (or resident), by contrast, none of those conditions
apply.  You point out that UCMJ is a real code of justice:  Agreed --
for our soldiers who enlist and voluntarily assume that status so that
military command works.  You point out that UCMJ specifies how prisoners 
held by our military must be treated:  Agreed -- but claiming that means
it's a suitable code of justice for trying non-US-military personnel is a
non-sequitur.

We _have_ a perfectly usable justice system.  It includes Constitutional
rights like trial by a jury of one's peers.  If it's somehow broken, it
can and should be amended -- in the light of day, rather than skulking
around with secret detentions and sealed warrants.  

> Prisioners can and have brought cases to Military tribunals
> under UMCJ.

Again, those were trials of _our_ guys.  So were all your other
examples.

> This is where the problem lies. These obvious war conditions are less
> clear when dealing with Spies, Terrorists, and other combatants in
> military conflict.

We have hundreds of years of experience dealing with such matters even
during time of war[1]:  US citizens arrested for such things are tried
the regular way, under the regular laws, subject to the usual
Constitution.

There may be times when application of martial law (a selective form of
which you're discussing) is necessary.  This ain't one of them.  

> This was true when Lincoln suspended Habeous Corpus in the Civil
> War....

I'm glad you've raised that matter, since it's one I'm very familiar
with, and the difference between President Lincoln and Mister Bush is
quite instructive:

In 1861, immediately after secession, the city of Washington was almost
cut off from the rest of the Union, with a crucial narrow railroad link
running through Maryland.  The situation in Baltimore was unstable,
though, with the 6th Massachusetts Regiment's reinforcement troops
facing riots as they transited through the Baltimore terminal.  To
prevent cutoff of Washington and secure the supply line, Lincoln issued
a presidential order on May 25 informing the ranking Army officer that
he could ignore writ of habeas corpus for the limited period required to
suppress insurrection inside a small geographical region surrounding
Baltimore.

That action was technically unconstitutional:  Article I, Section 9 says
that _Congress_ (not the president) may suspend habeas corpus when "in
cases of rebellion or invasion the public safety may require it".

Chief Justice Roger Taney (he of the infamous Dred Scott decision), a
Baltimore resident and secessionist, attempted to overrule Lincoln on
exactly those grounds.  Lincoln acknowledged the point of law but said 
that he had to act on an emergency basis or there'd have been no
Congress and no government.  Moreover, Congress immediately met and
_endorsed_ Lincoln's decision, rendering the point moot.  (Congress
similarly endorsed similar actions in some midwestern states, later.)

Five years later, a new Supreme Court essentially backed Justice Taney's
ruling: In an unrelated case, the court held that only Congress could
suspend habeas corpus and that civilians were not subject to military
courts, even in times of war. 

> ...with Washington's siezure of goods and serivces during the revolutionary
> was, and persecution of Loyalist sympathizers....

The Constitution hadn't yet been written.

> and continued with Cold War spy rings, on until today.

Cold War spies were all, every last one of them, tried under regular
laws in regular, Constitutional courts.

> Yes - but the Constitution has a loophole for military conditions.

There has been no finding by Congress that rebellion or invasion
requires suspension of habeas corpus.

> One the the UMCJ and the other is the traitor clause.

Nothing in the Constitution or any part of our judicial history
authorises trying civilians under military law.  To the contrary.

The crime of treason is tried under regular laws in regular,
Constitutional courts.

> And this is prior to any discussion of common law expression of the
> Constitution. The ultimate responsibility for the execution of these
> rights in granted to the civillian courts and the Congress.

That is correct.  And yet you are suggesting an end-run around that
tradition, putting civilians in military courts.  

> In order to hold him more than 48 hours, they would have to strip him of
> citizenship, or to have tried him as a traitor, or declared him a
> hostile foriegn agent. 

1.  Even a person stripped of citizenship for some reason is entitled to 
Constitutional rights such as a trial of one's peers as long as he
remains within US jurisdiction.

2.  Persons accused of treason _are_ being tried under regular law in
regular courts.

3.  Declaring a citizen a "hostile foreign agent" to justify stripping
him of rights has been, over the last year or so, a Bush Administration
ploy to circumvent the law, and is unacceptable.

> > But determining that they _are_ enemy soldiers doesn't require a court 
> > determination: We know in real time that they're enemy soldiers by 
> > observing the act of their shooting at our guys during a military 
> > engagement.
> 
> Actually, this is only true in an open combat condition, which is not
> the only condition in warfare combat. We bombed Hamburg until the city
> was largely sufficated from the lack of oxegen on the ground in WWII.

The point, however, is that there was no difficulty determining that
Germany and the occupants were enemies.  

> Certainly the civilians on the ground didn't 'seem' like soldiers. But
> they were treated as such and rightfully so.

The point is that they were very clearly not persons requiring a court
determination to authorise offensive operations against them.

To recap -- I was attempting to address your:

    Terrorism is not a crime.  We do not determine the guilt of
    soldiers who take up arms against us.

You were attempting to justify stripping citizens accused of "terrorism"
of rights on grounds of it being "warfare", stating that we don't stop to
determine the guilt of enemy soldiers.  My point was that there's no
ambiguity needing resolution in civil courts about legal status of enemy
soldiers -- nor of German civilians with the poor luck to still be in
Hamburg in July 1943.  They were/are outside our shores and the
protection of our laws.

With US citizens (and residents), especially _in_ the USA, those
conditions do not apply.  Therefore, we don't, we cannot say "You're
suspected of something really, really, really bad, so we're going to
strip a bunch of your Constitutional rights."  Of course, Mr.  Bush and
his gang _have_ been doing exactly that -- with the help of a few people
who should know better, such as U.S. District Judge Robert E. Jones. 

> And the same is true about 'Terrorists'. These aren't criminals.

But how do you determine that J. Random Citizen is a "terrorist"? 
You can't look for the secret terrorist mark on his forehead.  Absent that, 
you need the usual:  laws, trials, Constitutional rights.

> I agree with you, to the point that I do. I have no idea what he was
> caught doing, or not caught doing. Unfortunately this is not a perfect
> world, and his right to habeous corpus must be respected, as well as his
> due process. Even war prisioners have the right to due process. We will
> not know for several years the real circumstance behind the governments
> motivation, or the evidence against him. The government clearly violated
> his rights according to the facts that have been presented.

OK.

> But for the record, I don't think it would have been even remotely
> likely that he would sign a confession or agree to co-operate with the
> government in cases against other individuals if he didn't have some
> inside knowledge of the activities that the government was following up.

I can easily imagine someone being seized at gunpoint by an FBI squad,
taken to secret imprisonment, and denied all Constitutional rights for
months, signing any piece of paper that he's told would set him free in
7-10 years instead of staying in solitary indefinitely without charge,
trial, or hope of any change in that status.

I don't know what the man is factually guilty of.  But I do know that
his treatment is exactly the sort of thing that extracts confessions
from innocent people, which is why it's illegal.

This thread started with Pipes being quoted as criticising people who'd
cried foul over Hawash's treatment.  I've been replying to point out
why they were absolutely right.

> This was an individual of substance with a firm streak prinicple. This
> guy is probibly no more or less guilty than the Rosenbergs. Even still,
> this is not an excuse for suspending Habeous Corpus. This man, traitor
> or not, is a US citizen and desired the full weight of the Constitution
> to protect him and all of us from government abuse.

Thank you.