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1. Assume for the sake of argument that imprisonment of suspected terrorists without trial violates the Fifth Amendment. The question then becomes: What must

by dctoedt 14y ago

1. Assume for the sake of argument that imprisonment of suspected terrorists without trial violates the Fifth Amendment. The question then becomes: What must the government do about the violation --- that is, what is the prisoner's remedy? A) The canonical remedy for unlawful imprisonment is the writ of habeas corpus [1]. When a court issues "the Great Writ," it orders the prisoner's jailer(s) to bring the prisoner to court and, by implication, to release the prisoner if the court so directs. B) Article 1 of the Constitution expressly empowers Congress to suspend habeas corpus --- in other words, to strip from courts the authority to order the release of prisoners --- "when in Cases of Rebellion or Invasion the public Safety may require it." [2] Nothing in the Fifth Amendment alters this congressional power of suspension. C) It might be argued that in enacting the Patriot Act, Congress partially suspended habeas corpus in response to the "Invasion" we call 9/11. D) The courts try to interpret the various parts of the Constitution to be in harmony with one another if at all possible. E) So, "properly" interpreted, the Fifth Amendment might not stand in the way of imprisonment without trial in a case covered by a congressional suspension of habeas corpus. (The breadth of this possibility troubles me, incidentally; also, I'm far from a constitutional scholar.) ------------ 2. As to whether the Constitution prohibits killing an enemy combatant in wartime without individualized due process in each case: That'd be a really, really tough sell, not least because if that principle had been followed, the U.S. would not long have survived as an independent state. [1] http://en.wikipedia.org/wiki/Habeas_corpus http://en.wikipedia.org/wiki/Habeas_corpus [2] U.S. Const., art. 1, sec. 9, http://www.usconstitution.net/xconst_A1Sec9.html http://www.usconstitution.net/xconst_A1Sec9.html

bobbydavid 14y ago
Not that I necessarily agree with you, but this is a great comment.
neumann_alfred 14y ago
"It might be argued that in enacting the Patriot Act, Congress partially suspended habeas corpus in response to the "Invasion" we call 9/11." Even if someone did argue for that, which you didn't do, they would argue that 9/11 was an "invasion", not an invasion. See how that works? Also, the perpetrators were from Saudi Arabia mostly, yet Iraq was attacked, talking about how he's an evil man which had fuck all to do with him attacking the US. That's kinda where your whole post falls down like a house of cards. Remember Powell before the UN, with a dry throat and sweating a lot, showing his slides about what might be mobile WMD labs? Heh. No, to anyone not accomplice to it, or suffering from Stockholm Syndrome, this is rather clear. And it's old. Americans have been warning Americans for a century now. The military industrial complex doesn't do this since lately. As to whether the Constitution prohibits killing an enemy combatant in wartime without individualized due process in each case: That'd be a really, really tough sell If you simply define "military age males" who died in drone attacks as those, then they're not really enemy combatants, they're "enemy combatants", which raises the same issue as the "invasion" stuff does. Also, simply attacking people and calling it war doesn't make it "wartime". Just saying "it's war!" doesnt make it war.
- dctoedt 14y ago
  > ... they would argue that 9/11 was an "invasion", not an invasion. See how that works? Um, no, I don't. > Also, the perpetrators were from Saudi Arabia mostly, yet Iraq was attacked .... I must be missing something here, like what that has to do with the current constitutional discussion. > Remember Powell before the UN, with a dry throat and sweating a lot .... That's not the way I remember Powell's UN WMD presentation.
  - neumann_alfred 14y ago
    Guh. Just guh.

by dctoedt 14y ago

bobbydavid 14y ago

Not that I necessarily agree with you, but this is a great comment.

neumann_alfred 14y ago

"It might be argued that in enacting the Patriot Act, Congress partially suspended habeas corpus in response to the "Invasion" we call 9/11." Even if someone did argue for that, which you didn't do, they would argue that 9/11 was an "invasion", not an invasion. See how that works? Also, the perpetrators were from Saudi Arabia mostly, yet Iraq was attacked, talking about how he's an evil man which had fuck all to do with him attacking the US. That's kinda where your whole post falls down like a house of cards. Remember Powell before the UN, with a dry throat and sweating a lot, showing his slides about what might be mobile WMD labs? Heh. No, to anyone not accomplice to it, or suffering from Stockholm Syndrome, this is rather clear. And it's old. Americans have been warning Americans for a century now. The military industrial complex doesn't do this since lately. As to whether the Constitution prohibits killing an enemy combatant in wartime without individualized due process in each case: That'd be a really, really tough sell If you simply define "military age males" who died in drone attacks as those, then they're not really enemy combatants, they're "enemy combatants", which raises the same issue as the "invasion" stuff does. Also, simply attacking people and calling it war doesn't make it "wartime". Just saying "it's war!" doesnt make it war.

dctoedt 14y ago
> ... they would argue that 9/11 was an "invasion", not an invasion. See how that works? Um, no, I don't. > Also, the perpetrators were from Saudi Arabia mostly, yet Iraq was attacked .... I must be missing something here, like what that has to do with the current constitutional discussion. > Remember Powell before the UN, with a dry throat and sweating a lot .... That's not the way I remember Powell's UN WMD presentation.
- neumann_alfred 14y ago
  Guh. Just guh.