I'm getting even grumpier.

[Griff]

http://insightmag.com/main.cfm?inclu...storyid=143236

Read the last paragraph in the article.

[tw]

Originally posted by Hubris Boy
"... A state of actual war may exist without any formal declaration of it by either party, and this is true of both a civil and a foreign war" in which the President is "bound to meet it in the shape it presented itself." The Prize Cases, 67 U.S. 635 (1863)

and

The President may introduce the US armed forces into hostilities in the event of

• 1) a declaration of war,
• 2) specific statutory authorization, or
• 3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces

--50 USC 33, § 1541(c)

There is no doubt that we are in hostilities. But I don't see where that meets the legal definition of 'a declared war'.

50 USC 33, § 1541 only says arm forces may be sent into combat without a declaration of war. It does not say that, by sending troops, we have automatically declared war.

The Prize Cases, 67 U.S. 635 only says that international, neutral merchants may have their cargos embargoed, as if a condition of war exists, even though war has not been formally declared. That does not mean that war was declared; just that international shipping may be blockaded if the US conducts military operations as defined by "2) specific statutory authorization, or 3) a national emergency...".

Of course this could be enough to have the Supreme Court hear the case. But as I read these two cited precedents, I don't see anything that says the US has declared war without Congressional approval. We have not formally declared war - which is significant to the rest of this post.


Clearly this Bush 'need' for a military court of justice is scary to those who fear a violation of Constitutional rights. But why did he do it? There is good reason to fear the finding. But there may be another reason for its declaration.

What happens when bin Laden is taken prisoner. We have not declared war on his country, therefore he will not be subject to an international tribunal (ie. Nurenberg or what is happening to Yugoslavian war criminals). Do we put bin Laden before another OJ Simpson jury? Can you imagine the publicity? It would play into extremists seeking a martyr.

Look at the 1993 WTC bombing trial. The jurors could not sentence them to death. Is bin Laden to be a prisioner for life in Marion Ohio? He is not Noriega or John Goddi. bin Laden in Marion Ohio is a whole new ballgame about prision security. In a military tribunal, bin Laden would be held in a military prision with tight security inside (as in Marion) and military security outside (as not in Marion).

This Bush finding may be how the President has bin Laden tried and sentenced to death without much publicity and without exposing sensitive material used to collect evidence against bin Landen. Furthermore, the prosecutor does not have to worry about the jury being full of emotional types. Three people could not see an open and shut case against a Cherry Hill rabi whose own siblings accuse him of the murder. Can the Bush administration withstand a hung jury with bin Laden? No worry in a military court where judges are more logical rather than emotional.

Lastly, I can think of no other trial format that would be more accepted by international observers. Do you really think that bin Landen could get a fair trial in a jury of "his American peers"? How to get a mistrial: ask for a jury trial, then claim that he did not get a fair trial because the jurors were biased. He could play this out for a decade, all the while making himself more a martyr in the Arab world. All the while exposing jurors to future terrorist attacks.

The more I write this, then the more I can appreciate why the US might reinstate a military court of justice. Remember, WE have not declared a formal declaration of war on any other nation. That creates legal problems for the prosecution of bin Laden, and probably more important, for the prosecution of other Al queda leaders.

Then what happens if Taliban leaders are also found guilty of attacks on the US. We are to try officials of another government when we did not even declare war on that government? We did this against Noriega. But then Noriega had no international support and was proven, by Jimmy Carter, et al, of having stolen his elections. We don't have that same nicity with Taliban leaders.

Damn. I did it again. I wrote too much.

[Griff]

Unfortunately, its possible that in creating this court for bin Laden, the Bush administration has created something broad enough to try US citizens in. Has anyone got a link to the actual Executive Order?

[Hubris Boy]

Originally posted by tw
There is no doubt that we are in hostilities. But I don't see where that meets the legal definition of 'a declared war'.

50 USC 33, § 1541 only says arm forces may be sent into combat without a declaration of war. It does not say that, by sending troops, we have automatically declared war.

The Prize Cases, 67 U.S. 635 only says that international, neutral merchants may have their cargos embargoed, as if a condition of war exists, even though war has not been formally declared. That does not mean that war was declared; just that international shipping may be blockaded if the US conducts military operations as defined by "2) specific statutory authorization, or 3) a national emergency...".

Of course this could be enough to have the Supreme Court hear the case. But as I read these two cited precedents, I don't see anything that says the US has declared war without Congressional approval. We have not formally declared war - which is significant to the rest of this post.

That's the whole point... a state of war can exist whether Congress declares it or not. Why? Because the Supreme Court says so. The Prize Cases is a Supreme Court decision. TW, you got bogged down reading the details of the decision and missed one of the main points. One more time:

"A state of actual war may exist without any formal declaration of it by either party, and this is true of both a civil and a foreign war." --Mr. Justice Grier, writing for the majority

We are at war... de facto and de jure.

Originally posted by Griff
Unfortunately, its possible that in creating this court for bin Laden, the Bush administration has created something broad enough to try US citizens in. Has anyone got a link to the actual Executive Order?

I haven't been able to find it, Griff. That was one of my motivations for starting this thread- sort of a Cellar-wide APB. I've been trying to find it all week, and still haven't managed to come up with it. It's been frustrating... as far as I can tell, there's no equivalent to the Thomas Register for executive orders. Pity. Anybody else had any luck?

[elSicomoro]

Originally posted by Hubris Boy
I haven't been able to find it, Griff. That was one of my motivations for starting this thread- sort of a Cellar-wide APB. I've been trying to find it all week, and still haven't managed to come up with it. It's been frustrating... as far as I can tell, there's no equivalent to the Thomas Register for executive orders. Pity. Anybody else had any luck?

Straight from the horse's mouth.

(Now this just sucks...using Dubya for post # 700. Ah, but it's in the name of helping fellow Dwellars, so it's all good.)

[tw]

Originally posted by Hubris Boy
That's the whole point... a state of war can exist whether Congress declares it or not. Why? Because the Supreme Court says so.

The Supreme Court says nothing of the kind. You confuse 'state of war' with a 'declaration of war'. To be pragmatic, there is very little difference - especially to the soldier. But we are not being pragmatic. We must be legal. Legally a 'state of war' can exist with or without a 'declaration of war'. Domestic laws are applied differently based upon those definitions.

We can be in a 'state of war' - a police action such as VietNam, an internationally sanctioned peace mission such as Korea, or a declared war such as WWII. The first two involve no formal declaration of war. The third does. Big difference to lawyers. Little difference to soldiers.

As suggested, the difference was so great that the Bush administration may have released a finding that non-citizens can be tried in military courts. Normally that could be automatic IF we had declared war. We have not declared war. Big difference because top secret intelligence information and classified intelligence sources from our allies would have to be disclosed in open, civilian court - because we had not declared war.

It is irrelevant whether a state of war exists. Only relevant is whether war has been formally declared. I really hope I don't have to repeat this a fourth time. It does not matter whether you 'feel' we are at war. It only matters how lawyers define the conflict. 'State of war' and 'formal declaration of war' are not equal concepts. One is a subset of the other.

[Chewbaccus]

What worries me is the inevitable result of this decision. The mil-trib tries Bin Laden, convicts him, gives him the death sentence, kill him, and you know what you get? A martyr, and 20 people like him where there was one.

If I had my way, I would like to have seen him tried in The Hague. Have more people in the ruling (which would be guilty, just because of literally, the whole Western world being against this man), spread the fault around, perhaps not even have an American on whatever body renders the verdict.

Vainly wishful,

~Mike

[jaguar]

Hague or the US, in the eyes of an already distrustful to say the least muslim world i doubt it'd make that much difference. Unless the court had a decent muslim contingentthe effect wil be the same.