From: "Robert G Lewis" 

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
>>>>
>>>>

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