| Friday,
June 30, 2006
Subject: HAMDAN v. RUMSFELD
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=339&invol=763
Johnson V Eisentrager (1950)
<snip> Respondents, who are nonresident
enemy aliens, were captured in China by the United States Army and tried
and convicted in China by an American military commission for violations
of the laws of war committed in China prior to their capture. They were
transported to the American-occupied part of Germany and imprisoned
there in the custody of the Army. At no time were they within the
territorial jurisdiction of any American civil court. Claiming that
their trial, conviction and imprisonment violated Articles I and III,
the Fifth Amendment, and other provisions of our Constitution, laws of
the United States and provisions of the Geneva Convention, they
petitioned the District Court for the District of Columbia for a writ of
habeas corpus directed to the Secretary of Defense, the Secretary of the
Army, and several officers of the Army having directive power over their
custodian. Held:
1. A nonresident enemy alien has no access
to our courts in wartime. </snip>
Once more I come to the conclusion that IF this
President had just cause to go to War, that he should have asked Congress
for a Declaration of War. Based on what I read above, if we were officially
at war, the "noncombatants" would have no access to our Courts. Because of
the limbo of "we will stay until we are not needed any longer or Congress
pulls the financing," the Courts have a doorway in which to usurp yet more
power from the Legislative and Executive branches. Their latest ruling is
almost humorous in the way it's worded.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=05-184
It starts off stating that the Congress authorized the
President to "use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed or
aided" the September 11, 2001, al Qaeda terrorist attacks" but later states
that "The military commission at issue is not expressly authorized by any
congressional Act."
Now, I'm no legal expert, but I'd say "use all
necessary and appropriate force against those... persons he determines ...
aided" the September 11, 2001 attacks easily covers setting up military
tribunals to determine if a "noncombatant" did so aid the terrorists
responsible.
It's just an opinion, mind you, but after reading
this, it looks more like the Court is saying "We can't turn you loose but we
don't want you tried outside our jurisdiction because that might cost a
little of our gathered (and often unconstitutional) authority."
Braxton S. Cook
Well I don't usually put it that strongly, but I do
think the courts have unreasonably expanded their jurisdiction -- Surprise!
Pournelle's Iron Law applies to the Courts, too!
I also agree that a formal Declaration of War would
be preferable to these odd Congressional resolutions we have had.
Clearly we are feeling our way toward a more
Imperial form of government; first a centalized national government rather
than federal; and then toward a more Imperial form with regard to other
nations and interests.
==========
And from a career
military legal officer:
Sir,
your other correspondent who quotes Eisentrager misses
a couple of pertinent differences. One of those points is in his quote, that
is the the accuseds in that case were captured, tried and convicted in
China, the area of operations in which their crimes were committed. The
Hamdan court speaks to the three types of commissions, and on the
battlefield is one type, not present here. Guantanamo is (arguably, and has
been held to be) the territory of the U.S. Cuban law doesn't apply, U.S. law
does.
The Authorization to Use Force is not obviously an
expansion of Presidential power, and the court rejected the notion that the
authorization to use force expanded the President's power to include
creating special courts.
Of course, the finding that the detainees are covered
by Common Article 3 was a significant ruling by itself, and would have
invalidated most of the procedures in use.
The prior Supreme Court precedent on commissions was
decided in a different era, and the law was different. Most importantly, the
federal courts could not review military cases, other than for jurisdiction.
That changed post-WWII. That limitation was a large part of the rationale
for the prior commission cases, and didn't apply any longer.
As for the DTA (Detainee Treatment Act), the act had
several provisions, two of which explicitly were retroactive, and the other
provisions were silent. In such cases, the rule of construction would find
that the ones which were silent were prospective only. The prospective
provisions included that provision removing habeaus jurisdiction from the
court. So, anyone who already had a habeaus petition being considered still
had a right to be in court. Scalia believed that the language could only be
read to be retroactive. I (along with most others, and the majority of the
Supreme Court) disagree.
In sum, I'm obvioulsy biased, given my job, but I
think the court was right. No U.S. flagged court should exist without a
right to confrontation, to self-representation, to full and equal access to
evidence. There is also little rationale beyond ensuring convictions in
removing our existing rules of evidence and procedure. Certainty in rules
would be nice, not rules that change day to day. Congressional action puts
the legislative job back in the hands of the legislature.
Mr. Acting Officer
==
Dear Jerry,
I guess I have one question about Guantanamo relative
to the U.S. Supreme Court. If a civilian contractor or civil service
employee is arrested for a felony on the base, what is done with him with
legally? Where is he prosecuted?
http://en.wikisource.org/wiki/United_States_-_Cuban_Agreements_and_Treaty_of_1934
The Treaty of 1903 between the USA and Cuba
establishing Guantanamo Naval Station provided that United States law would
prevail within the base. See Article IV, which was reincorporated into the
1934 Treaty concerning Guantanamo:
"Article IV
"Fugitives from justice charged with crimes or
misdemeanors amenable to Cuban law, taking refuge within said areas, shall
be delivered up by the United States authorities on demand by duly
authorized Cuban authorities."
"On the other hand, the Republic of Cuba agrees that
fugitives from justice charged with crimes or misdemeanors amenable to
United States law, committed within said areas, taking refuge in Cuban
territory shall on demand, be delivered up to duly authorized United States
authorities."
So, what in fact has been happening for the last
century to Guantanamo military family dependents, DoD civil service
employees and civilian contractors when they are accused of felonies?
They're certainly not being court-martialed under the UCMJ. Nor are they
being turned over to the Cuban government because the Treaty specifically
cedes legal jurisdiction to the U.S.A.
>>Johnson V Eisentrager (1950)<<
>>At no time were they within the territorial
jurisdiction of any >>American civil court.<<
This is precisely the crux of the matter. Guantanamo
IS NOT an extraterritorial Allied Power like China 1945 or occupied enemy
territory like Germany 1946. Have any United States Courts routinely
exercised jurisdiction over Guantanamo Naval Station and its non-military
population during the last 100 years? Ever wonder why the CIA didn't want to
use this handy stash for those it deems really high value prisoners? Perhaps
CIA legal staff anticipated that US judges at some point would assert a
pre-existing jurisdiction over Guantanamo Naval Base.
Best Wishes,
Mark
p.s.
As far as I can tell now, it was the geniuses of the
Bush Administration who chose to bring these people within an existing
jurisdiction of the federal civil courts. They have steadfastly insisted
these people are neither enemy civilians or military prisoners of war but
occupy a previously unknown (to US law) third category of people. In other
lands and times this category has been called Enemies of the People, Enemies
of the State, Enemies of the Crown or Enemies of God.
The 'liberal' wing of the Supreme Court resisted this
and the accompanying unilateral creation and operation by administrative
diktat of a parallel 'tribunal' system operating on territory that, by
century old treaty, HAS been subjected to US legal jurisdiction. The
Constitutional crisis, if any, appears to me to have started in the actions
of the Executive Branch by trespassing on Congress' sole Constitutional
authority to legislate both civil and military crimes and to establish
courts.
Subject to this it seems to me the Court acted in a
cautious manner by choosing to treat the Guantanamo prisoners as enemy
prisoners of war, rather than as interned enemy civilians. Had the Court
held them to be interned enemy civilians the floodgates of civil litigation
would truly have been opened, beginning with 450+ petitions for habeas
corpus accompanied by demands they either be charged with definite crimes or
released.
In my opinion score one for the Old Republic vs New
Empire.
The next time this comes up, I suggest trying a long
term bare bones charter of a foreign flagged cruise ship.
Legal discussions are of interest, but history
shows that there comes a time when they are swepts aside. Inter armes,
silent leges. In perpetual war for perpetual peace there is a probable
result.
John Marshal has made his decision. Now let him
enforce it.
That is: lawyers are important so long as those who
command weapons believe they are important. John Adams thought the lawyers
were the aristocracy of the republic; but that was long ago.
===============
Subj: Why do other countries have trouble copying
America's Silicon Valley?
http://www.thomaspmbarnett.com/weblog/archives2/003403.html
=[T]he hardest thing is simply creating the culture
where failure is not just tolerated, but admired for its expressed audacity
and ambition. And you know what? I can’t help but think when I read this
article that our youth’s gaming culture really plays into that mindset, by
creating competitive environments (you against the machines, typically)
where frequent failure is a given but beating the system and the odds is
likewise a given--just one extended a bit by time, frustration and
experimentation.=
This reminds me of the scene in _Oath of Fealty_, in
which the woman responsible for recruiting entrepreneurs for the arcology
says she's *displeased* her failure rate is so low, because it indicates
she's *not taking enough risks*.
http://www.usatoday.com/tech/world/2006-06-27-silicon-culture_x.htm
USATODAY.com - Tech start-ups don't grow on trees outside USA
Rod Montgomery==monty@sprintmail.com
=============
Greetings from somewhat damp Philadelphia!
I saw the
reminder link to your trip reports and, being a Classics major,
immediately browsed your visit to Rome.
Naturally, I have a couple comments:
(Remarks have been appended to the Rome reports)
==================
Last item for today. It is quite long:
Attached is the Commanding
General, MCI West speech to the MAAC yesterday morning. For those that don't
attend I thought it might be of interest.
(deleted official emails. I'll vouch it's real--Mike)
Good morning ladies and gentlemen,
Eight days ago, I was present in the audience
when Tom Brokaw addressed the 2006 Stanford graduating class. After the
initial pleasantries and one-liners, Mr. Brokaw said something unexpected.
He told the class that they were the children of privilege, fortunate to be
attending one of the finest educational institutions in the country, the
anointed because they had both the test scores for admittance and parents
who were able to afford their tuition. He noted that they could likely
expect rapid advancement in almost any endeavor they choose and that they
were destined to lead the most powerful country in the world.
The class was beaming.
And then Brokaw reminded them that the
liberties and freedoms they enjoyed were being defended by young people
their age that did not have their advantages. That at this time thousands of
men and women were fighting, dying and suffering debilitating injury to
ensure that the rest of us could live the American dream.
There was an uncomfortable shifting in the
seats, followed by slow but growing applause from the audience.
When we sent my son to Stanford four years ago,
we filled out a form asking for demographic information. One of the
questions for the parents said, what is your profession? After it was a list
of about thirty professions including doctor, lawyer, congressman, educator,
architect. Military was not listed so I filled in “other”
My son was the only graduate who had a parent
serving in the armed forces. As I was introduced to his friends’ parents, it
was interesting to watch their reaction. Few had ever spoken to a member of
the military. One asked me how my son was able to gain admittance with the
disadvantage of having to attend “those DoD schools”. Many voiced support
for our military and told me that they’d have served but clearly military
service was not for their kind of people.
This year of the so-called elite schools,
Princeton led them with nine graduates electing military service. Compare
that with 1956 when over 400 of the Princeton graduating class entered the
military. Most of the other Ivy League schools had no one entering the
military this year.
I wonder how many of you know the young people
who are serving today. I won’t embarrass anyone by asking for a show of
hands to ask how many really know a young enlisted Marine who has been to
war.
I’m going to try to give you a better feel
about those who serve our nation.
Our Marines tend to come from working class
families. For the most part, they came from homes where high school
graduation was important but college was out of their reach. The homes they
come from emphasize service. Patriotism isn’t a word that makes them
uncomfortable.
The global war on terrorism has been ongoing
for nearly five years with Marines deployed in harm’s way for most of that
time. It is a strange war because the sacrifices being levied upon our
citizens are not evenly distributed throughout society. In fact, most
Americans are only vaguely aware of what is going on.
That isn’t the case aboard the Marine bases in
Southern California where we see the sacrifice everyday as we train aboard
those open spaces that you covet for other purposes. Many of our Marines are
married and 70% of our married Marines live in your communities, not aboard
Marine bases. These Marines coach your soccer teams. They attend your places
of worship. They send their kids to your schools. However, in many ways they
are as different from the rest of the citizens of Southern California as my
son was different from the rest of the students at Stanford.
One of the huge differences between the rest of
society and our Marine families, is when Marine daddies and mommies go to
work, some of them never come home. The kids know that. The spouses know
that. Week after week we get reports of another son, father, husband who
won’t be coming back. During the past four years, over 460 Marines from
Southern California bases have been killed by the enemy. 107 more have died
in Iraq and Afghanistan due to accidents. 6500 have been wounded some of
them multiple times.
You will never know or meet Brandan Webb age 20
or Christopher White age 23 or Ben Williams age 30. They were all assigned
to First Battalion First Marine Regiment, Camp Pendleton, California. They
were some of the Marines who died this week out of Marine bases in Southern
California.
Last Friday, we hosted a golf tournament at
Camp Pendleton to raise money for wounded Marines. There are a lot of
expenses that the government cannot legally pay for from appropriated funds.
The people who attended the tournament genuinely wanted to help and we
invited a couple of dozen wounded Marines to golf with them. As I watched
the teams leave for a shotgun start, I saw three Marines sitting by
themselves and went over to talk to them. Clearly they’d been told by their
chain of command that this was their appointed place of duty. They were
sitting in the sun chatting, probably not unhappy with the duty but mildly
uncertain as to why they were there. I asked them why they weren’t golfing
and they said that they’d never learned. No one in their families ever
played golf and that this was the first time they’d ever been on a golf
course. I asked them how many times they’d deployed. One of the young men
had just returned from his third deployment and had been wounded every time.
The others teased him for being a bullet magnet. I asked him if he was going
to stay in and he thought for a moment what to say to a general and he said,
“I think I’d like to try college. No one in my family has ever gone.”
I asked these Marines if I could buy them a
beer. They looked at me and smiled. One of them said, “We can’t ask you to
break the rules sir. None of us are 21 yet.”
They seemed much older. As I left them I
wondered about a policy that gives a young man the power of deciding who
will live and who will die but won’t let him drink a beer. I thought about
these young Americans who had never shot golf but had shot and killed other
men in order to carry out foreign policy.
On the 10th of August we will open a wounded
warrior barracks at Camp Pendleton. Few taxpayers’ dollars were used. We
were able to raise the money through the Semper Fidelis fund to house those
Marines who no longer need to be hospitalized but who suffer debilitating
injuries and need follow-on care. Heretofore, when regiments left for the
war, they left their non-deployables behind. These Marines often had to live
in WWII era barracks with open squad bays and gang heads down the hallway.
Those having limited mobility found it difficult and uncomfortable. It was
no way to treat our wounded warriors. We’re fixing it.
Now let me introduce you to another enlisted
Marine. His name is Brendan Duffy. Brendan was an infantry Marine. Like so
many others, Brendan had dreams of going to college but no means to do so.
While he was in the Corps, he immediately began using his Montgomery GI bill
benefits by enrolling in Mira Costa College. Though deployed soon after
signing up for college, he took his textbooks to war. Last month he received
Mira Costa’s highest award for academic excellence, the Medal of Honor for
Academic Excellence. Brendan described studying pre-calculus while fragments
from explosions struck the sandbag shelter he was in.
Brendan left the Corps this week and has been
accepted to the University of California Los Angeles to study math and
economics.
Later this morning I’ll be meeting with
educators across the California University system. We are trying to make
California more veteran friendly. California hosts 40% of the combat power
of the Marine Corps and 40% of the Marine veterans who leave the Corps do so
out of Southern California bases. 96% have participated in the Montgomery GI
Bill and are eligible for benefits but only a small number enter the
California University system. That’s because California, unlike other states
did not provide any veterans preference or even reach out to veterans. These
combat veterans score in the top 50% of their age group, are drug free and
morally straight but are lost to California and return to other states that
aggressively work to attract them.
Several months ago, I along with senior
leadership of all the Services, met with Governor Schwarzenegger and told
him that California was not an education friendly state for military
veterans. To his credit, he is trying to change that and this meeting today
is a natural outgrowth of his support.
In Iraq, the media talks about the casualties.
They seldom report the successes. I don’t think that this is intentional. It
is just more difficult to quantify progress and reduce it to a sound bite.
Some of you may recall almost exactly two years
ago when a four man sniper team from 2nd Battalion, 4th Marines was killed
on a rooftop in Ramadi. It made news because sniper teams aren’t supposed to
get ambushed and because an M40A1 sniper rifle was now in the hands of the
enemy.
Over the next two years, that rifle was used
against Americans and we wanted it back. Last week, a 21 year old Marine
sniper from 3rd Battalion, Fifth Marines out of Camp Pendleton observed a
military aged male videotaping a passing patrol of amphibious assault
vehicles near Camp Habbaniya. After radioing the patrol and telling them to
stay low, the Marine watched the man aiming a sniper rifle that looked
remarkably like his own.
He killed the enemy sniper with one round to
the head. Seconds later, another insurgent entered on the passenger side and
was surprised to see his partner dead. That hesitation was enough time to
allow Sgt Kevin Homestead age 26 to kill the insurgent before he could drive
off.
When the Marines went down to inspect the
scene, they saw that the sniper rifle was one of their own. It was the same
M-40A1 sniper rifle looted from the 2/4 sniper team exactly two years
earlier.
We are making progress in Iraq. The Iraqi Army
is more capable each month. In the Anbar province we have brought the 1st
Iraqi Division - the most capable of the Iraqi formations - to the former
British RAF base of Habbaniyah - between Fallujah and Ramadi. We are
standing up the 7th Division. In Baghdad, Iraqi brigades own parts of the
city and are reporting directly to the US Army Division commander as
component units.
The Iraqi Police are the essential element -
and the most difficult challenge. In any insurrection, the insurgent
specifically targets the local security elements of the government - because
they are essential to maintaining control via interaction with the
community, intelligence gathering, and law enforcement against petty and
organized crime, traffic control. These police units are having good success
in places like Fallujah. Ramadi is a different kettle of fish. Some of the
police departments haven’t been paid in months and the intimidation campaign
is in full force.
My Chief of Staff, Colonel Stu Navarre formerly
the Commander of the 5th Marine Regiments told me this story. One day in
December, the Ramadi Police Dept Operations Officer (#3 in the pecking
order) did not come to work. When we inquired, he told us that the day
before his 10 year old son had been kidnapped after school and transported
to the north side of Ramadi. He was called by the kidnappers and advised of
his son's location. When the Operations Officer arrived at the location, he
found his son alive, with a note pinned to his shirt, "If you go to work
tomorrow, you will never see your son again. We know where you live." I
wonder how many of us would show up for work with that kind of intimidation.
Your fellow Americans in uniform in Iraq and
Afghanistan are doing a superb job in the most dangerous places on earth.
They believe in what they are doing. The majority of the sergeants,
corporals, and privates enlisted after 9-11. They knew what they were
signing up for. They want to deploy in defense of the nation. We are sending
best leadership to the combat zone. Service in Iraq/Afghanistan has become
the norm for our Marine and Army leaders, and an essential part of their
experience/qualifications for advancement. Finally, the American people have
continued to demonstrate an unprecedented level of support for their fellow
Americans in uniform - as well as the understanding that these young men and
women are executing the policies of their elected representatives.
Reconstructing an entire nation takes time.
Think about our own experience during the American Revolution. Despite
having a homogeneous nation with no incipient insurgency, it was thirteen
years from the Revolution to the ratification of the Constitution. We seem
to have forgotten that it takes time to build institutions.
Introduction of a stable, representative form
of government in Iraq is revolutionary in its impacts on the region and the
world. Iraq is at the center of the Mid-East, the Arab world, and Shia
Islam. Iraq has been, and will continue to be a major producer of natural
resources - especially oil. It is at the center of the chess board. Iraq
separates two sponsors of terrorism - Iran and Syria - and with Afghanistan
- isolates Iran. It is no coincidence that Muammar Qadaffi has sensed the
change in the wind and sought to distance himself from terrorism and WMD and
become a legitimate player in world politics.
The Iraqis are capable of running Iraq. Today,
thousands of young Iraqis are lining up to become soldiers and policemen -
despite constant, highly lethal attacks on recruiting stations, police
stations, and army checkpoints. Concurrently, there is no more dangerous job
than being a candidate for office or an elected official in Iraq. We should
not underestimate the absolute danger to any Iraqi that steps up to plate
for law, order, and progress. The enemy is absolutely committed to winning.
For him, there is really no other option. He also understands that the
center of gravity is the commitment of the American people.
One of my major concerns is quality of life
issues for our Marines, Sailors and their families. We are making
significant progress but we have a long way to go.
We are building 1600 more homes at Miramar to
give our Marines and Sailors decent places to live. California is a
beautiful State. It is also extraordinarily expensive and we are the gypsies
in your castle often driving 50 or 60 miles one way to because those are the
only places that our junior Marines can afford to live.
We are replacing worn out World War II vintage
barracks that we make our single Marines live in. When I took over, I
visited some of the open squad bay barracks at Camp Horno in Pendleton. A
young Marine corporal and veteran of the fighting in Iraq looked at me and
said, “Sir, I lived better in Fallujah.” That hurt but he was right. A
couple of weeks later I had a chance to talk to the Commandant and tell him
the same story. I told him that at the rate we were replacing barracks, we
wouldn’t have decent enlisted quarters until 2036. To his credit, he
listened and we now plan to have them replaced by 2013. This won’t come
without a cost because the Marine Corps doesn’t get more money to build
barracks, we have to realign our priorities and not buy other things that we
need. It was a significant decision by our senior leadership but the right
thing to do.
With our Navy partners we are going after Pay
Day Lenders. Pay Day Lenders are the parasites found outside of our military
bases in Southern California who prey on young Marines and Sailors because
the lenders know they are uninformed consumers. Pay day lenders take
advantage that California has some of the weakest laws in the country. In
North Carolina, pay day lenders are limited to 36% annual percentage rates
of interest. Here in San Diego we regularly see rates of 460% and I have
seen rates as high as 920% being charged legally against our service
members. Service members go into a cycle of debt. Ultimately because we
expect our Marines to be financially responsible, their ability to reenlist,
compete for good jobs and keep a security clearance is affected.
Let me be clear. Pay day lenders are not
providing our Marines with a service. They are parasites, bottom feeders and
scumbags. One of them sent me a note recently telling me that he was a
member of an honorable profession and that I should back off. He told me
that a pay day lending institution had been found in the ruins of Pompey
after Mount Vesuvius erupted. I responded to him that archeologists also
found a whore house and that antiquity did not bequeath virtue. It is a
shameful practice.
We also recognize that military leaders have a
responsibility to educate our service members and their families about sound
money management. We are doing that. We are using our base papers,
information campaigns and personal intervention to tell them that there are
alternatives to the pay day lending institutions.
Both the State and Federal legislatures have
heard our message as well and there are bills making their way through the
process to significantly curtail the excesses of payday lenders.
I know that many of you came here today to find
out what I would say about the airport situation at Miramar. So as not to
disappoint you, let me be clear.
The Marines came to Miramar ten years ago as a
result of a BRAC decision and four subsequent BRAC rounds determined that
the interrelationship of the Marine and Navy bases in Southern California
provided a capability that was unmatched anywhere in the country.
The Marine Corps uses its bases as a projection
platform for combat power. 25,000 Marines from California bases are
presently deployed in harm’s way and over 3,000 of them are from Mirama | 
