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Originally posted by Secret_Agent_Man
Ok. But to enforce even so light a standard such as that would require review of each detention by some third party -- although not necessarily the judiciary. If the review is to be perceived as independent and impartical -- it will be tough to do it in-house -- although my experience with the military justice system suggests to me that the vast majority of those involved would work very hard to do it by the book and get it right.
The administration's position is -- has been -- zero outside review by anyone outside the executive branch. I think that they may well lose on this to some extent -- the one thing you don't tell the Supreme Court in the modern era is that it has no power to even consider reviewing the actions of the Executive.
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In order of your sentences. Why a third party? While I'd personally prefer it, especially with the involvement of Congress by, for example, appointment of overseers who are not activist judges or anything similar, I'd also just as soon trust it to the military unless we already have a specific prohibition against it (or against the punishments you noted).
Independent and impartial? OK, I don't disagree that I'd like to see some semblance of it, though I really would not want to require any review that might require anything even close to the protections we offer domestic criminals. Seriously, maybe a request for records of Sgt. Smith and the processing of the prisoner -- just to make sure he didn't appear from nowhere. Maybe an interview of the prisoner to make sure he doesn't have a Texas drawl (and he doesn't claim to be a poor democrat with black gold in his back yard that Bush wants). But if a standard is not already required (probable cause etc.), there is no way it should be created.
Ugh, I take it back because I'm thinking about it as I write. The standard should be "no substantial evidence that the weight of evidence against the prisoner is false"... or something like that. Just not probable cause, beyond a reasonable doubt or anything approaching our domestic protections.
While I appreciate your position on how the Supreme Court feels, I honestly believe they should limit their involvement to determining what oversight they (or anyone) already has, not to creating such oversight out of the air. If a reason has not been provided in the last 200 years, I'd rather not see them or anyone make a reason up now.
But, just for the sake of our nation, I'd still prefer to be viewed as at least civil. Something created by congress, like the national security courts, except without judges, and without the strenous legal standards such as those noted above, would be ok.
More than anything, I'd rather just make sure there is little room for a future president to start using this sort of thing to affirmatively harm americans or those protected by treaties. In fact, if someone went to the supreme court and said "we believe prisoner X is at Guantanamo and he is an American citizen, and he was --taken-- on American soil", I'd imagine it would be hard to restrain the judiciary from asserting oversight over an investigation, and properly so. How in the world would we argue that we can just take the military's word that someone is not an American citizen taken on American soil?
Nope, no way, no how. There is always a way to get someone else involved and I'd actually be appalled if the White House asserted that nobody has the right to investigate whether they are holding an American citizen who was taken from American soil.
I'm actually proud of myself now for coming up with such a hypothetical way to envision Judicial oversight. Thank me later comrade.
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Originally posted by Secret_Agent_Man
That may be the correct answer legally -- I don't know that law (although I suspect we signed a couple of such treaties). I am not one of those who would go so far as to say that the actions of the U.S government must satisfy constitutional muster wherever in the world they may be.
The military also has been treated somewhat differently than law enforcement in this regard. I don't remember the outcome of the case in the past few years challenging the U.S. government's seizure and prosecution of the Mexian doctor who helped keep Enrique Camarena (American federal agent (DEA?)) alive and conscious while a drug gang tortured him to death for information. As I recall, the doctor was seized extrajudicially, dumped at the border, and picked up by U.S. law enforcement under "suspicious circumstances." I think he was sentenced to life, and that the Courts ruled that the 4th Amendment don't apply in Mexico.
S_A_M
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I seem to recall the same as you for the Camarena matter... and no qualms here.
I guess at some level I just think that American citizens are entitled to some level of protection from our government/executive (and help from our government in equal measure for everyone similarly situated). While I wouldn't argue that Taliban Johnny deserves the same protections as Padilla, I would like to think that there is some de minimis protection for him, even from Afghanistan to Guantanamo (not that he was at Gitmo), as compared to other non-american citizens detained overseas.
Come to think of it, that kid got a better deal than he deserved what with the circumstances of his capture. As long as it was established by some not-too-stringent-standard that he a.) was there (Afghanistan) and b.) openly and violently opposing the execution of American foreign policy in a capacity as a terrorist or soldier of a foreign power (whether recognized or not)...
the courts should be able to turn him back to the military.
While he might be entitled to some protections as a POW (that applies to all of them I guess, but I'm not sure and I'm not sure why), I'd imagine he does not deserve the same level of protection as, for example, a state death penalty prisoner.
Christ, now I'm going to have to look into why they treated that (insert any level of insult here) as kindly as they did.
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