From: Gary Britt 



Robert G Lewis wrote:
> Not a perfect world at wall. Why would the cops in this city think they can
> ignore the law ? This , as written, was not an emergency situation. If the
> cops actually followed the law then no problem.


That's all true which is why the evidence couldn't be used in a criminal
trial, the question then becomes we have evidence these people are in fact
enemy agents at a time of war so what does the constitution require.  The
whole point is that the constitution doesn't require and has never required
that prisoners of war, enemy combatants, and illegal enemy combatants be
given the protections of the 4th amendment.  The constitution has never
required that the enemy be given *criminal* trials.  It has always been
they can be held for the duration of the conflict without *ANY* trial
(other than a military tribunal hearing to contest their status as a member
of the enemy forces for people not captured on the battlefield outside the
country - and even that is a very recent requirement).  You keep focusing
on a very irrelevant point (the illegal search, which everyone concedes was
illegal from a *criminal* law point of view).  The point is when you have
captured the enemy within our borders what is required.  The point of the
author (a law professor, Clinton DOJ appointee who does NOT support Bush)
is that the decision in the Al Masri case would require that these enemy
soldiers found within our borders in the act of carrying out enemy
operations of a nature that violate the law of war must be released.  It is
this absurd outcome that is the basis for this professor to argue that the
logic of the majority opinion in Al Masri is in conflict with recent and a
long line of Supreme Court cases going back to before World War II.  He
points this out merely to make his case as to why he thinks this decision
will be overturned.

Whether he is right or not we will have to see, but the question under
discussion is *NOT* the propriety of searches in a *criminal* context.
There is no argument about what the *criminal* law requires.  The question
is about what standards apply to the *ENEMY AT A TIME OF WAR* found within
our borders.  All the case law from the Supreme Court says the ENEMY in a
war doesn't get treated like a criminal and criminal law standards and
procedures do NOT apply to them.  That's the point of the authors
hypothetical.  That the Al Masri logic requires results that are not
supported by current and past Supreme Court decisions.

Gary


>
> I'd have far more sympathy for his point had it not been such a clear cut
> case of police screw ups. The cops had no knowledge of criminal activity or
> enemy status when they broke the law.
>
> I wonder if the writer would feel the same if the police got a tip on him
> and searched without a warrant his property ?
>
> BTW at least some of those we caught in WWII were executed. After arrest and
> trial. And many of those interned ( who paid a terrible price) had sons on
> the front lines fighting for our side.
>
> "Gary Britt"  wrote in message
> news:466ec7dc$1{at}w3.nls.net...
>> Not a perfect world and not at all the point of the blog post from which
>> your quote is extracted.  The hypothetical was to set up a situation where
>> they can't be criminally prosecuted yet its undisputed they are in fact
>> illegal enemy combatants with whom we are at war.  We didn't turn such
>> people loose in World War II when found inside the USA and we didn't
>> prosecute them criminally either.  We have always had the choice of
>> locking up the enemy for the duration of the conflict.
>>
>> Gary
>>
>> Robert G Lewis wrote:
>>> We could also train the police to obey the law and get a
warrant . Judges
>>> seem to have no problems issuing warrants.
>>>
>>>
>>> "Gary Britt"  wrote in message
>>> news:466e3968$1{at}w3.nls.net...
>>>> The subject at hand Rich was your erroneous summary of the
4th Circuit
>>>> Al Marri case, and now you are wondering off into
completely extraneous
>>>> arguments.  I don't like a lot of things about Bush and the Bush
>>>> administration and that dislike is growing daily.  This case you
>>>> incorrectly summarized in your intro sentence just doesn't
happen to be
>>>> one of those things.  For a rational discussion of what is wrong and
>>>> inconsistent with the 4th Circuit decision and an
understanding of why
>>>> the decision was 2-1 with 1 in favor of the Bush
understanding of the
>>>> law and constitution and an explanation of why this
decision will likely
>>>> be reversed follows:
>>>>
>>>> Gary
>>>>
>>>>
>>>> http://volokh.com/posts/1181615410.shtml
>>>>
>>>> Orin Kerr, June 11, 2007 at 10:30pm] Trackbacks
>>>> What Should Happen to Al Qaeda Cell Members Discovered in the United
>>>> States?: I've been mulling over the Fourth Circuit's decision in
>>>> Al-Marri v Wright, and I have two tentative thoughts about
it. First, as
>>>> a matter of policy, its reasoning can lead to results that are
>>>> completely bizarre. Second, those possible results help
explain why I
>>>> think the U.S. Supreme Court would look at the case very differently
>>>> than did the Fourth Circuit.
>>>>
>>>>   To see why I think the results of Al-Marri are so
puzzling, consider
>>>> the following hypothetical. An Al-Qaeda cell of five
individuals, all
>>>> citizens of Qatar, enter the United States on student
visas. The cell
>>>> members' plans are to detonate a "dirty bomb" in
New York City, and they
>>>> rent a hotel room in Jersey City, New Jersey (just across
the river) to
>>>> build the dirty bomb. One of the hotel employees thinks the group is
>>>> suspicious, and he calls up the local police and tells an
officer that
>>>> there is a group of Arab men in the hotel staying in one
room and acting
>>>> very secretively.
>>>>
>>>>   The officer visits the hotel when the men are out one day and he
>>>> requests that the hotel employee show him the room. The
employee agrees;
>>>> he opens the door with his key and shows the officer inside. They
>>>> immediately see the bomb-making materials along with
several photographs
>>>> of Osama bin Laden and the 9/11 attacks taped to the
walls. The officer
>>>> contacts the FBI and the Department of Homeland Security.
An hour later,
>>>> the FBI has obtained a search warrant for the room and
arrest warrants
>>>> for the five men.
>>>>
>>>>   The men are arrested and charged criminally. A search of the hotel
>>>> room discovers all the bomb-making materials. The room search also
>>>> uncovers videotapes the men made celebrating their pending
attack; the
>>>> men each spent a few minutes on tape describing what
attacks they will
>>>> execute and hoping and praying that the streets of New
York will "run
>>>> red with Jewish and imperialist blood."
>>>>
>>>>   But there's a major problem with the criminal case: The evidence
>>>> against the cell members was obtained in violation of the Fourth
>>>> Amendment. Under Stoner v. Califonia, the men have a reasonable
>>>> expectation of privacy in the hotel room and the hotel clerk lacks
>>>> authority to consent to a law enforcement search. As a result, the
>>>> evidence against the five men was obtained in violation of
their Fourth
>>>> Amendment rights. The evidence --
>>>> including the videotapes in which they each celebrated the
attacks and
>>>> confessed to their plans -- must be suppressed.
>>>>
>>>>   So what should the government do? It seems to me that
under the Fourth
>>>> Circuit's decision in Al-Marri v. Wright, the government has two
>>>> choices: it can either deport the men or else must set
them free. The
>>>> military cannot hold them, Al-Marri teaches; they are not
"enemy
>>>> combatants" but rather are merely
"civilians." Sure, they're Al Qaeda
>>>> cell members who entered the United States to execute
another 9/11, but
>>>> hey, they're still civilians with Due Process rights
against detention.
>>>> It would be different if the men were Taliban soldiers,
Al-Marri tells
>>>> us; then they would be "enemy combatants." But
since they're just
>>>> everyday Al Qaeda cell members instead, they can't be held
under that
>>>> authority. Under Al-Marri, the government has to either
deport the men
>>>> or set them free. (There could be a possibility of
detaining the men on
>>>> material witness warrants, but in this hypothetical they
are the only
>>>> people involved in the plot.)
>>>>
>>>>   From a standpoint of policy, this result seems
incredibly bizarre to
>>>> me. Could it really be the case that the U.S. should have
to deport or
>>>> set free an Al Qaeda cell tying to blow up a nuclear bomb
in the U.S.? I
>>>> agree that there are often legitimate issues of proving that alleged
>>>> terrorists are really terrorists; if the President declares that the
>>>> five men are Al Qaeda members who want to blow up a dirty
bomb, we may
>>>> want to see some proof. But in this hypothetical, there is
no doubt that
>>>> the men are terrorists: just watch the tapes the men made
before being
>>>> caught in which they boast of their attacks. Could it
really be the case
>>>> that the most the government can do in light of the Fourth Amendment
>>>> violation is to deport the men to a foreign country? I find that
>>>> possibility just bizarre.
>>>>
>>>>   My reaction is part of the reason why I think the
Supreme Court would
>>>> have a very different take on Al-Marri than the Fourth Circuit did.
>>>> Compare Al-Marri to Hamdi v. Rumsfeld. Hamdi was an American citizen
>>>> captured and believed to have been fighting with the Taliban; he was
>>>> brought to the United States and detained there. He argued that his
>>>> detention violated 18 U.S.C. 4001, which prohibits the
detention of U.S.
>>>> citizens "except pursuant to an Act of
Congress." The Court disagreed,
>>>> holding that Hamdi could be detained because the AUMF was
the required
>>>> Act of Congress. Hamdi then argued that his detention violated Due
>>>> process; a plurality held that the detention was
constitutional so long
>>>> as Hamdi was given some process in the determination that he was an
>>>> enemy combatant. It then remanded the case for the
relevant proceedings.
>>>>
>>>>   I find it pretty unlikely that a majority of the Supreme
Court would
>>>> say that Hamdi can be detained (if he is given the
necessary hearing)
>>>> but Al-Marri has to be let go. It seems plausible to me
that Hamdi and
>>>> Al-Marri have equivalent rights to have their cases heard
in court via
>>>> the writ of habeas corpus: Hamdi because he is a U.S. citizen, and
>>>> Al-Marri because he was detained in the United States. But
once you get
>>>> past jurisdiction, isn't the case for detaining Al-Marri a
lot stronger
>>>> than the case for detaining Hamdi? First, Al-Marri is a non-citizen
>>>> while Hamdi is a citizen. Second, Al-Marri is at the core
of what the
>>>> AUMF was all about, while Hamdi was more at the periphery.
>>>>
>>>>   For this latter point, recall what the AUMF actually says:
>>>>
>>>>     The President is authorized to use all necessary and appropriate
>>>> force against those nations, organizations, or persons he determines
>>>> planned, authorized, committed, or aided the terrorist attacks that
>>>> occurred on September 11, 2001, or harbored such organizations or
>>>> persons, in order to prevent any future acts of
international terrorism
>>>> against the United States by such nations, organizations or persons.
>>>>
>>>> Isn't that pretty clearly directed at a member of an
Al-Qaeda cell who
>>>> entered the U.S. on September 10, 2001 to commit attacks
-- much more
>>>> directly than a United States citizen who was fighting against the
>>>> Northern Alliance? That's part of the reason why i think the Supreme
>>>> Court would look at this case differently than the Fourth Circuit; I
>>>> suspect they would see a case like Al-Marri as being a
core AUMF case,
>>>> much more so than Hamdi. An alien Al Qaeda cell member who
entered the
>>>> U.S. to execute attacks is exactly the kind of person that
Congress was
>>>> trying stop with the AUMF; the case that he's an
"enemy combatant" is
>>>> stronger than the case for Hamdi. If anyone is an
"enemy combatant,"
>>>> it's Al-Marri (assuming the allegations against him are true).
>>>>
>>>>   That's why I think Al-Marri would be a repeat of Hamdi
if it got to
>>>> the Supreme Court. I imagine the Court holding that the AUMF is
>>>> sufficient to detain non-citizen Al Qaeda members who
entered the U.S.
>>>> to execute attacks, and then moving on to what kind of Due Process
>>>> hearing Al-Marri is entitled to receive to test whether he
is in fact
>>>> such a person. The Court would then remand for further
proceedings based
>>>> on whatever the Due Process standard turns out to be.
>>>>
>>>>   Anyway, that's my initial take; obviously it's open to revision if
>>>> there's something I'm missing, which is always a
possibility. Finally, I
>>>> should add that there is a possible way out of the Fourth Amendment
>>>> holding described above: A court could hold that members
of an Al Qaeda
>>>> cell who enter the U.S. to commit attacks have no Fourth Amendment
>>>> rights under United States v. Verdugo-Urquidez because they lack
>>>> sufficient legitimate connections with the U.S. If so, then the cell
>>>> members would not be able to invoke the Fourth Amendment
to challenge
>>>> the illegal hotel search, and the evidence could be admitted against
>>>> them.
>>>>
>>>> Rich Gauszka wrote:
>>>>> You may want to consider moving to Chile as the idea of military
>>>>> tribunals obviously appeals to you.
>>>>>
>>>>>
>>>>> The United States has used the term Enemy Prisoners of
War EPW for a
>>>>> long time but of course that was subject to the Geneva
Conventions for
>>>>> treatment of those prisoners - something about humane
treatment that
>>>>> absolutely confounds the Bushies
>>>>>
>>>>>
>>>>>
http://www.icrc.org/ihl-nat.nsf/0/94B18B8D276D22C0C1256BC80044C23D
>>>>>
>>>>> Law or Regulations: Army Regulation 190-8 on Enemy
Prisoners of War,
>>>>> Retained Personnel, Civilian Internees and Other Detainees, 1997
>>>>>
>>>>> Gary Britt wrote:
>>>>>> Yes it was.  It was an inaccurate highly biased and somewhat
>>>>>> uninformed summary.
>>>>>>
>>>>>> We have a criminal system for criminals.
>>>>>>
>>>>>> We have a *separate* system for war prisoners,
enemy combatants, and
>>>>>> illegal enemy combatants.  These separate systems
have always existed.
>>>>>> They are nothing new.  The congress has declared
war and made specific
>>>>>> authorizations for handling these people who are
at war with us.  If
>>>>>> you don't think we are war, then take it up with
your congressman, but
>>>>>> until the democrats actually vote to declare
defeat and surrender, the
>>>>>> AUMF and Military Comissions Act, etc remain in
full force and effect.
>>>>>>
>>>>>> Gary
>>>>>>
>>>>>> Rich Gauszka wrote:
>>>>>>> No my statement was not overbroad.
>>>>>>>
>>>>>>> Second we have a system of law. If someone is
believed guilty then
>>>>>>> bring them up before the system for a trial. - period.
>>>>>>>
>>>>>>>
>>>>>>> "Gary Britt"
 wrote in message
>>>>>>> news:466dde40$1{at}w3.nls.net...
>>>>>>>> Rich Gauszka wrote:
>>>>>>>>> How did I state this incorrectly? To
quote the court
>>>>>>>>>
>>>>>>>> You Stated:
>>>>>>>> So much for the Bushies valued belief that
the military can seize
>>>>>>>> civilians and imprison them indefinitely
ignoring their constitution
>>>>>>>> rights
>>>>>>>>
>>>>>>>> That statement is overbroad and incorrect
as a result.  Bush can
>>>>>>>> still pickup and imprison people like
Hamdan and Hamadi and Padilla
>>>>>>>> and Masri. This case doesn't affect those
situations that have been
>>>>>>>> resolved by the Supreme Court and the
Military Commissions Act.
>>>>>>>>
>>>>>>>> After further reading, it appears that
this matter is well
>>>>>>>> overstated. This guy entered the USA after
training in terrorist
>>>>>>>> camps on SEPTEMBER 10, 2001. He is alleged
to be part of the second
>>>>>>>> wave of Al Qaeda attacks that Bush has so
far thwarted.  Under Bush
>>>>>>>> he was and is entitled to a trial before a
military tribunal where
>>>>>>>> he can contest his status and have an appeal.
>>>>>>>>
>>>>>>>> Some law professors, who otherwise do not
support the President on
>>>>>>>> his terrorist surveillance programs and
strong article II
>>>>>>>> constitutional powers are predicted that
this case will be
>>>>>>>> overturned either by an en banc review of
the full 4th circuit or by
>>>>>>>> the Supreme Court.  It appears that Bush's
position is much stronger
>>>>>>>> than the slanted media writings you focus on.
>>>>>>>>
>>>>>>>> Whether this case is upheld or reversed
doesn't really matter to me,
>>>>>>>> but the facts as they are coming out seem
to strongly support the
>>>>>>>> reasonableness of Bush's approach to this
guy.  He is alleged to be
>>>>>>>> not just an enemy combatant but an illegal
enemy combatant (one who
>>>>>>>> seeks to violate the rules of war by
attacking purely civilian
>>>>>>>> targets, etc.) and if Military Tribunals
are good enough to try our
>>>>>>>> own soldiers who commit wrongful acts they
are plenty good enough to
>>>>>>>> try such alleged illegal enemy combatants.
>>>>>>>>
>>>>>>>> Gary Britt
>

--- BBBS/NT v4.01 Flag-5