The United States a Nation of Laws?

[MikeyDB]

H.R. 6166: Military Commissions Act of 2006

Passed House (96% of Republicans supporting,83% of Democrats opposing.)


“(E)(i) Except as provided in clause (ii), hear say evidence not otherwise admissible under the rules of evidence applicable in trial by general
courts-martial may be admitted in a trial by military commission if the proponent of the evidence makes known to the adverse party, sufficiently in advance to provide the adverse party with a fair opportunity to meet the evidence, the intention of the proponent to offer the evidence, and the particulars of the evidence (including information on the general circumstances under which the evidence was obtained).”

Yale Law Professor Bruce Ackerman states in the L.A. Times, "The compromise legislation....authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights."

Similarly, law Professor Marty Lederman explains: "this [subsection (ii) of the definition of 'unlawful enemy combatant'] means that if the Pentagon says you're an unlawful enemy combatant -- using whatever criteria they wish -- then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to 'hostilities' at all."

The bill also contains a definition of "wrongfully aiding the enemy" which labels all American citizens who breach their "allegiance" to President Bush and the actions of his government as terrorists subject to possible arrest, torture and conviction in front of a military tribunal.

It also pre-emptively criminalizes any challenge to the legislation's legality by the Supreme Court or any United States court and allows the use of torture that is, "incidental to lawful sanctions."

Effectively this bill grants planet-wide authority to the U.S. military and the American government to hold anyone identified as a terrorist (which can also mean anyone opposing President Bush or American "authority") for trial by military tribunal.

Habeas corpus is pronounced invalid as are many other international legal constructs widely accepted by the interenational community.

The United States has declared itself through this bill as the planetary police authority and supreme arbiter of "justice".

This government is no friend of free-speech, rules of evidence or the already tremendously weakened civil law systems extant in the United States of America.

With the passing of this bill, human rights has become a myth in America. What happened to Mr. Arar is now codified as perfectly acceptable under American law..... a law that America will prosecute internationally.

 

[Colpy]

You are correct about one thing........the American (as well as the Canadian) government's attempt to use 9-11 as an excuse for a massive power grab is absolutely unacceptable.

We should not be using the opposition of a bunch of Islamofascists as an excuse to become more LIKE them.

However, the fight in the United States is not over. It may be a slow process, but the Executive and the Legislative branches in the USA still need the approval of the Judiciary for this crap to remain law.

In other words, the Supreme Court will throw this stuff out. It is a clear violation of the Fifth Amendment to the Constitution of the United States, which states that military tribunals can ONLY be used when the defendent was a serving member of the US military at the time of the offense.

The unfortunate part of this, and why I challenged you over your attack on the American system, is that the Canadian government could easily get away with this................the "notwithstanding" clause.

Give it time to work through the American system.....my guess is it will not stand.

 

[MikeyDB]

Colpy

I hope you're right...that it gets the axe passing through the senate. I echo your concerns regarding the "notwithstanding" clause that yellow Canadian politicians wrote into our system to placate the separatists in Quebec and as seems to be developing B.C. and elsewhere...

The larger question I see here is that if such a large majority of the House of Representatives are actually tiny little Adolf Hitlers' how can anyone anywhere not only believe what America has to say about anything but have any real-world expectation that the next fascist regime in control of a nuclear arsenal second to none isn't nearly guaranteed to be just as fascist as the current cabal of autocrats?

 

[MikeyDB]

Is it the religious fanatics who we're hoping will be unsuccessful in acquiring WMD because strategies in place to prevent weapons proliferation work, or is it the nutbars who already have thousands of nukes and this "America.....second only to God in importance..." attitude sitting with their finger on the button ready to prove once and for all that God DAMN IT I SAID NO!......

 

[MikeyDB]

Let me put this a different way....

Tell me once more who I should be most afraid of here....

A terrorist who may or may not be able to circumvent some weaponized nations arsenal and successfully escape....who if he's of the opinion that killing infidels is just.....

An American whom I know to be capable of lies theft betrayal and an abiding self-interest that will brook no limitations...reasonable or otherwise....who has many many weapons of all kinds already that many Americans feel shouldn't just be permitted to lie around collecting dust but ought to be used.....

 

[I think not]

Listen up MikeyDB, and listen well, I agree with you on this issue.

Congress's moral compass has been spinning out of control for several years. They have lost their sense of direction and "American" ideals. Their purpose it seems is nothing more than reducing rights afforded all American citizens. It's an attempt at a power grab like Colpy mentioned.

Having made that disclaimer, keep in mind that there are a myriad of times in which a Bill is pproposed in the House and gets squashed in the Senate or vetoed by the President. Assuming the Senate passes and the idiot in the White House signs it, all is not lost. The ACLU will jump on this Bill like white on rice and commence a lawsuit against the government as being unconstitutional. It's not gonna fly, worse things have passed government and our Supreme Court has thrown it out the window. Like Colpy said, let the system follow its course. The checks and balances embedded in our Consitution by the Framers was NOT by sheer luck. It is precisely this type of government they feared would try and rule with an iron hand and get away with it. They won't. They can't.

There is one single unifying force that keeps Americans united; The United States Constitution, without it, we would be lost.

As for your reference to your "notwithstanding clause", personally, I find it disgraceful. It was intentionally place within your Charter for the purpose of the government to "check" the population and not the other way around. However, I don't believe the "notwithstanding clause" would apply in this case as it can only be implemented on certain clauses.

 

[MikeyDB]

Thanks for the feedback ITN

What's your perspective on disarming the population....I only ask since we've seem to found some common ground....nice by the way

 

[I think not]

It is precisely these types of Bills that are introduced that I thank our Framers for the Second Amendment;

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

Now keep in mind I am a person that has never owned a gun and personally doesn't want to have anything to do with them. But I also acknowledge the necessity of a population to be armed, particularly when we are governed by people that wish to deprive us of our rights.

 

[MikeyDB]

Frequently the charge has been laid or the gauntlet thrown whichever metaphor you like... that a great many of my contributions are "Anti-American" and that there seems to be almost an obsessive quality to my participation and perhaps some others from time to time, with what appears to be an overarching propensity to focus on everything that's "wrong" or "bad" with America...

Not that this particular topical conversation given it is in fact a piece of legislation that if passed will redefine the world in many ways for not only Americans but the whole planet.

I think this kind of discussion is not only warranted regarding this dynamic in governments (Canadian or American) but also in terms of the potential "slippery-slope"...I do hope you loathe that phrase as much as I...that this and similar legislation illustrates as at work in our systems of government...

 

[I think not]

When there is something "wrong" or "bad" with America, I have to acknowledge it. I won't like it, but hiding behind my thumb won't help the issue. I've been a card carrying member of the ACLU for years. I go to their local seminars and I donate frequently. The organization plays a pivotal role in securing and expanding our fundamental rights and freedoms.

Generally speaking MikeyDB if there is an issue of rights, you will probably find me in agreement with you. Whereas I admire the Framers that slapped together the US Constitution, I know it is not without it's faults. Much work has yet to be done in a few areas, like "Eminent Domain".

Freedom and rights is a journey and not a destination. As attitudes and comprehension shifts so do rights and freedoms. That's my take on it.

 

[MikeyDB]

I'd really like to sit down and have a cold one with you sometime!

The reason why most lead pencils have an eraser on one end is in many respects to acknowledge our own falibility. I don't ever want to "throw the baby out with the bath water"....god Idon't know now I'm thinking in cliches!!

Mistakes don't make you a bad person, mistakes unacknowledged and repeated in the face of abject failure suggests something other than full comprehension and good judgment are at play...

I'm interested in identifying potential "issues" or "problems" and regardless of who exactly was responsible or who ordered whatever to happen and somone died or was tortured and left a cripple...People need to be advised that there are some seriously maladaptive personalities crafting "legislation"...

 

[I think not]

People need to be advised that there are some seriously maladaptive personalities crafting "legislation"...

Couldn't agree more. There will always be people within any government that will push legislation that conform to their personal view of the world. That view, often enough, clash with fundamental principles of rights and freedoms.

When a congressman proposes a constitutional amendment that bans flag burning (just an example), there is something innately wrong with this individual. I agree that many people would consider flag burning to be something vile, because it represents something they believe in. However, the right of another individual to burn that same flag in protest, far outweighs any "offense" someone else might take.

My attitude has always been to fight to expand more rights. The more rights "We the People" obtain, the more diffifult it will be for future governments to keep the population in check. You mentioned what my view is on gun ownership. I assume you asked because of the violence associated with it. Some people believe the Second Amendment is anachronistic and has no place in todays world. I fundamentally disagree with that view, for one simple reason, human beings are at their moral infancy. So long as greed and the lust for power exist, people should remain well armed.

 

[MikeyDB]

I’ve mixed feelings about firearms from the standpoint that a properly trained conscientious law abiding citizen who chooses to acquire and use firearms should certainly be afforded that right. Then the issue becomes more complex when you consider that once firearms (more specifically handguns) are in the possession of a perfectly mature responsible adult, access to that gun and the attention necessary to ensure that it not be stolen and enters an underground gun marketplace depends entirely on factors that may well be beyond the control of that particular individual. I think the right to own and use firearms is a right every person living in a free society must have but I wish there was some way of safeguarding the storage and management a bit better.

I’ve owned many long guns i.e. rifles and shotguns as well as several hand guns (revolver and 9mm semi-auto) been trained to shoot just about every small arm there is and am a qualified Range Officer. I compete in two disciplines, bulls-eye and IPSC, (action shooting…pop-ups, pepper poppers (metal targets that fall down when struck with an accurate round…) have never lost or had a firearm stolen.

The only “danger” presented is to a piece of paper (and OK the occasional steel plate).

I recently renewed my Possession and Acquisition License (Canadian for gun permit) and thoroughly enjoy the shooting sports.

Now if there’s a darker cloud looming it’s this feeling I’m getting more and more each day that there may well be a more critical need for firearms ownership that has to do with what I perceive to be an increase in free-floating anger and fear that’s changing people’s levels of tolerance and behaviour.

Several years ago I attended a protest rally on Parliament Hill to weigh in with my fellow sportsmen in declaring our opposition to the increasingly complex and more expensive licensing procedures and it was while talking with people from all over Canada who attended the rally that the first sense of a government purposefully disarming the population…..

During this period there was talk of outright banning of handguns (our ex-Prime Minister had that on his agenda as well…) and the confiscation of firearms as a safety measure to address gun violence and use of firearms in criminal activities.

Nonsense of course since criminals are ipso facto not going to be too concerned about obtaining and using a firearm in the commission of a crime, while the legitimate legal gun owner loses his right to protection from search and seizure (in my home and traveling in my automobile). A police officer in Canada does not require a search warrant to search the premises of anyone legally owning a firearm….. (restricted firearms that is…pistols and certain types and makes of long guns)

I’m hoping that the psychological climate of fear and trepidation that seems to be bubbling just beneath the surface here in Canada gets dissipated somehow but to be frank, legislation like the piece I presented here, doesn’t go much distance in quelling anxieties.

Couple that with the new policy of the USCG of using patrol boats with mounted automatic weapons aboard on the Great Lakes and a few other eyebrow raising issues out of your country and it gets to be more stressful not less.

 

[FiveParadox]

Responding to what you said above, I Think Not, Section 33 of the Constitution Act, 1982 (more intimately known as the notwithstanding clause) could, in fact, be used to legislate something to the effect of the piece of legislation now before the Congress of the United States of America.

Section 33 can override any fundamental right or freedom; the rights to life, liberty and security; the right to be free of unreasonable search or seizure; the right not to be arbitrarily imprisoned; the right to be informed of the charges against one's self and to have counsel; the writ of habeus corpus can be overridden; the right to be tried within a reasonable time limit; the right to be presumed innocent; the right not to be subjected to unusual or cruel punishments; the right of witnesses to not have their testimony used against them; the right to access a translater or interpreter in a court of law; and the right to be equal before the law.

 

[MikeyDB]

Five Paradox

Greetings!

Thanks for your input and what impresses me as either being well-informed or perhaps an officer of the court with knowledge to share from that venue.
If you'd like to expand on your position a bit with respect to either the Notwithstanding clause or H.R. 6166 I'd enjoy the perspective afforded from where you sit. Although our attention is very often and justly so focused on the 'econonmics' of government policies and legislation, these two address the quality of life that Canadians and Americans experience at the level of basic rights and freedoms. Do you think section 33 of the Constitution Act or the proposal before the senate cited above represent what's in the best interests of our two nations? Do you think giving governments the authority to un-do laws that protect civil rights and safeguard the population from capricious behaviour witnessed when a government is ostensibly attempting to address "larger" issues like national security et al....demands greater scrutiny and rigorous public debate?

 

[elevennevele]

The United States is suppose to be a beacon in the world when it comes to a rule of law and a protector of human rights. Not a country that would put forth this. Think of the countries that practice stuff like this, and yes there are countries which practice this sort of thing in their own way. However such countries are on the human rights watch.

In this law you can use hearsay evidence as long as a judge deems it reliable (that is a contradiction because the reason such evidence is thrown out traditionally in the first place is because it's unreliable). And in this law the defendant's guilt can be a product of an authorization to use aggressive interrogation methods that might otherwise be seen as illegal by international courts.

Of course they will use such methods if they’ve written them into law, and people have been known to say whatever to stop being tortured. It's so sad to see America do this to themselves as a country.



http://www.theglobeandmail.com/servlet/story/RTGAM.20061017.wusterr1017/BNStory/International/home

Tough new U.S. terror bill signed into law

“The President can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions,” ACLU executive director Anthony Romero said.

“Nothing could be further from the American values we all hold in our hearts than the Military Commissions Act,” he said.

The swift implementation of the law is a rare bit of good news for Mr. Bush as casualties mount in Iraq. Senators and representatives are increasingly calling for a change of strategy and political anxieties are jeopardizing Republican's chances of hanging onto control of Congress.


Mr. Bush needed the legislation because the Supreme Court in June said that the administration's plan for trying detainees in military tribunals violated U.S. and international law.


The legislation, which sets the rules for court proceedings, applies to those selected by the military for prosecution and leaves mostly unaffected the majority of the 14,000 prisoners in U.S. custody, most of whom are in Iraq.


The Pentagon had previously selected 10 prisoners at Guantanamo Bay prison to be tried. Mr. Bush is expected also to try some or all the 14 suspects held by the CIA in secret prisons and recently transferred to military custody at Guantanamo.


The bill also eliminates some rights common in military and civilian courts. For example, the commission would be allowed to consider hearsay evidence as long as a judge deemed it reliable. Hearsay is barred from civilian courts.


The legislation also says the President can “interpret the meaning and application” of international standards for prisoner treatment, a provision intended to allow him to authorize aggressive interrogation methods that might otherwise be seen as illegal by international courts.


White House press secretary Tony Snow said Mr. Bush would probably eventually issue an executive order that would describe his interpretation, but those documents are not usually made public and Mr. Snow did not reveal when it might be issued.

 

[elevennevele]

Oh yeah, and this is if anyone even makes it to a trial.

"'Vital tool' will give military power to hold suspects indefinitely without trial"

I’ll say this, in the decision to implement draconian forms of law in the United States, Bush is no King Solomon.

 

[Colpy]

Oh yeah, and this is if anyone even makes it to a trial.

"'Vital tool' will give military power to hold suspects indefinitely without trial"

I’ll say this, in the decision to implement draconian forms of law in the United States, Bush is no King Solomon.

I agree completely.

The thing that most discredits our governments' (both American and Canadian) attempts to "protect our free society" is their willingness to gut that society at a drop of a hat.

However, I don't believe the US Supreme Court will stand for this. And it is an equal partner in the "separation of powers" system in the United States. Give the system a chance, and I believe it will work.

The legislation, like the anti-terror bill in Canada, is an atrocious and indefensible attack on liberty in a free state.

 

[elevennevele]

Well Colpy, the fact is ‘chances’ aren’t up for me to give. The United States isn’t my country to be fighting for. It’s really up to the Americans if they wish to go this route.

While I am concerned about any risks to Canadians if they enter the USA, this is mostly a matter that will harm the United States in the deterioration of their due process, their system of justice as well as their standings in the rest of the world.

All done in one fell swoop of Bush’s hand.

And yes, my greatest and real concern is what direction Canada goes with this current government. One that appears sympathetic to American Politics. I don't want to touch that direction with the proverbial "ten foot pole". First a government starts slowly and then the next thing you know you're living in a world where your country admits and justifies the use of torture. Honestly, who could have guessed that of the United States, pre-911? You would have been so ridiculed to suggest such a possibility, but here we are. And what alarms me is the ‘quiet’. A people to the south that seems self-defeated in the face of it.

And much the same, I don’t think our society is impervious to these sorts of things either. It really worries me.

...

Please note, I don't feel Harper is a person who would take Canada down the route of torturing suspects. So before anybody responds, I'm not drawing any relationships to that with this current Canadian government. The little things a government can do however (a little bit here, a little bit there) can be very consequential to the society. So let’s not fall asleep at the wheel.

 

[MikeyDB]

Well there’s certainly a need for some serious questions.

For example:

What evidence can be gleaned from media sources (One can not overemphasize the importance of qualifying these sources.) which can be cited in support for the need to eviscerate the fourth and the Fifth Amendment?
Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V

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 offence 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.

Is there a preponderance of evidence available to “we the people” sufficiently compelling to convince a reasonable person that a need exists to radically alter several seminal components of the constitution of the United States of America?

Is it fair to suggest that when you arbitrarily involve yourself (nation military, legal system) internationally, that the fabric of the guiding principles behind your actions should be expected to reasonably correspond to your stated intention in performing that action?

The actions of the government of the United States, the Administrations of three if not four Presidents and members of their respective cabinets have contributed to a significant global wide destabilization.

If we examine human history with a view to being able to ascertain identifiable elements as precursors expressed during the emergence of a police state, would that review reveal alterations of policy and definitions directly influencing the administration of a national military?

What does history teach us?

When a “right-wing”, “neo-fascist”, “communist” etc. “element”, all found among the contestants and body of any ruling government, foresee an opportunity afforded them to structurally alter the framework of policies heretofore submitted as the very rationale underpinning democracy itself does history reveal any features that can be identified like for instance, elections that have dubious legitimacy, or tidal waves of corruption in the marketplace permitting billions to drift to a select few?

Have there been local or neighboring nations or communities that have been fundamentally altered as a result of non-military “policy-changes” taking place as one faction or element capitalizes on circumstance?