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And here's why that defense won't work: '...and shall be thereof convicted, on confession in open court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted...'

None of them were ever accused of a crime in a court of law. Even under the very flimsy standards of such a court as was found unconstitutional by US v Milligan, no trial or accusation of a crime ever took place.

We didn't even try him in absentia. Even more damning is when the Yemeni's did arrest him as a favor for us, after 18 months in prison, we had to admit we had nothing and they let him go.

They do have confessions on him. They have five confessions on the Dix grps indicating him as influencing. Ft Hood shooter and the UNderwear bomber citing him for their action. The stature alone condemns him. Thats high percentage chance their going to go with. Only way I can think of for the gov't to get pass the Amendments. I bet a case a beer on this

Being known as 'The Underwear Bomber' must really suck...

BaronIveagh wrote:Mind you, after we had him jailed without trial by a foreign power for 18 months.

...

Even more damning is when the Yemeni's did arrest him as a favor for us, after 18 months in prison, we had to admit we had nothing and they let him go.

We never "had him jailed." Awlaki claimed that his detention was due to Yemeni officials being pressured to detain him, when he was actually detained on charges for kidnapping a teenager for ransom.

U.S. officials "didn't object" to his detainment, but that's about all the influence they had. Keep in mind that this was stated over one year after Awlaki was detained.

Bromsy wrote:

Jihadin wrote:He was a cleric too.

Goddamn, he played D&D? Had it coming then.

You win, sir.

Jihadin wrote:They do have confessions on him. They have five confessions on the Dix grps indicating him as influencing. Ft Hood shooter and the UNderwear bomber citing him for their action. The stature alone condemns him. Thats high percentage chance their going to go with. Only way I can think of for the gov't to get pass the Amendments. I bet a case a beer on this

And none of these confessions took place under oath, in a court of law (as far as I'm aware). That's what I'm driving at here. If you apply a car battery to a man's testicle's enough times, he'll tell you that you're God and he is your only chosen prophet. That testimony isn't admissible though, in any civilized court.

My point, and this seems to escape everyone, is this:

The US is a nation of laws. The assassination of Anwar al-Awlaki, while quite possibly laudable, was a crime. The Supreme Court case I have been referring to was also a case of treason (and the accused faced death). The court ruled in favor of the accused, as his rights under the Constitution had been denied.

Last I heard, Marine, your oath was sworn to '..support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same... So help me God."

While that action may have killed a few enemies of the United States, they also undermined the Constitution itself.

"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." - Benjamen Franklin.


Though you could always be an oathbreaker and join us in Náströnd.


Sal sá hón standa
sólo fiarri,
Nástrǫndu á,
norðr horfa dyrr.
Fello eitrdropar
inn um lióra.
Sá er undinn salr
orma hryggiom.

Sá hón þar vaða
þunga strauma
menn meinsvara
ok morðvarga
ok þannz annars glepr
eyrarúno. - Völuspá

I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God

Last I heard, Marine, your oath was sworn to '..support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same... So help me God."

While that action may have killed a few enemies of the United States, they also undermined the Constitution itself.

Your going into an area of thought/discussion I can't go into

Jihadin wrote:
Your going into an area of thought/discussion I can't go into

It's not hard. When the second violates the first, the first takes precedent. You are, after all, not bound to follow unlawful orders. (according to some interpretations, quite the reverse.)

"the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal." - US v Keenan.

BaronIveagh wrote:

Jihadin wrote:They do have confessions on him. They have five confessions on the Dix grps indicating him as influencing. Ft Hood shooter and the UNderwear bomber citing him for their action. The stature alone condemns him. Thats high percentage chance their going to go with. Only way I can think of for the gov't to get pass the Amendments. I bet a case a beer on this

And none of these confessions took place under oath, in a court of law (as far as I'm aware). That's what I'm driving at here. If you apply a car battery to a man's testicle's enough times, he'll tell you that you're God and he is your only chosen prophet. That testimony isn't admissible though, in any civilized court.

My point, and this seems to escape everyone, is this:

The US is a nation of laws. The assassination of Anwar al-Awlaki, while quite possibly laudable, was a crime. The Supreme Court case I have been referring to was also a case of treason (and the accused faced death). The court ruled in favor of the accused, as his rights under the Constitution had been denied.

Last I heard, Marine, your oath was sworn to '..support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same... So help me God."

While that action may have killed a few enemies of the United States, they also undermined the Constitution itself.

"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." - Benjamen Franklin.


Though you could always be an oathbreaker and join us in Náströnd.


Sal sá hón standa
sólo fiarri,
Nástrǫndu á,
norðr horfa dyrr.
Fello eitrdropar
inn um lióra.
Sá er undinn salr
orma hryggiom.

Sá hón þar vaða
þunga strauma
menn meinsvara
ok morðvarga
ok þannz annars glepr
eyrarúno. - Völuspá

Confessions don't have to be under oath. you just need witnesses or taping of said confession.
If the FBI has a legal tap of Willy The Wonka's phone and Willy talks on it about offing Hershey then thats definitely admissable.
Just saying...

Frazzled wrote:
Confessions don't have to be under oath. you just need witnesses or taping of said confession.
If the FBI has a legal tap of Willy The Wonka's phone and Willy talks on it about offing Hershey then thats definitely admissable.
Just saying...

To confess to treason, you have to do it in open court. That recording is certainly admissible evidence, it's not a confession under oath, per se. However, witnesses and evidence that you did it are good enough to try you in absentia, which was never done.

Which is, again, my point. Someone confessing before the court and pleading guilty is waiving their trial by jury. They still have that right, they just are not exorcising it. In this case, however, due process was not followed. Guilt was never proven under the law. All that we have is a 'trust us' from the Government.

"And in all of my years of public life, I have never obstructed justice. And I think, too, that I could say that in my years of public life, that I welcome this kind of examination, because people have got to know whether or not their president is a crook. Well, I am not a crook." Richard M Nixon.

Congress

The framers left it to Congress to decide the punishment for treason, which Congress in turn has defined as a minimum of five years in prison and a maximum of death

Jihadin wrote:Congress

The framers left it to Congress to decide the punishment for treason, which Congress in turn has defined as a minimum of five years in prison and a maximum of death

And, again, they still have to be Found Guilty. Which WAS NOT DONE. Without a trial (of any sort in this case) The Government my not deprive a US citizen without Due Process.

BaronIveagh wrote:Without a trial (of any sort in this case) The Government my not deprive a US citizen without Due Process.

The fifth amendment neither limits itself to citizens, nor specifies the limits of due process. Its perfectly feasible to suppose that the sort of due process we all enjoy in the United States is nothing like the due process involved in determining whether or not to kill someone who is abroad.

Judicial was purposedly left out of treason and congress was indicated as the deciding factor


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SO being indicted as a traitor is up to congress

BaronIveagh wrote:

Frazzled wrote:
Confessions don't have to be under oath. you just need witnesses or taping of said confession.
If the FBI has a legal tap of Willy The Wonka's phone and Willy talks on it about offing Hershey then thats definitely admissable.
Just saying...

To confess to treason, you have to do it in open court. That recording is certainly admissible evidence, it's not a confession under oath, per se. However, witnesses and evidence that you did it are good enough to try you in absentia, which was never done.

Which is, again, my point. Someone confessing before the court and pleading guilty is waiving their trial by jury. They still have that right, they just are not exorcising it. In this case, however, due process was not followed. Guilt was never proven under the law. All that we have is a 'trust us' from the Government.

"And in all of my years of public life, I have never obstructed justice. And I think, too, that I could say that in my years of public life, that I welcome this kind of examination, because people have got to know whether or not their president is a crook. Well, I am not a crook." Richard M Nixon.

Where are you getting that from? Also it doesn't have to be Treason. Merely joining the enemy army makes you a valid target.

BaronIveagh wrote:
The US is a nation of laws. The assassination of Anwar al-Awlaki, while quite possibly laudable, was a crime.

And its been explained to you several times, very specifically, why it wasn't.

Moreover, you can cite the Constitution all you want, but Constitutional law is not criminal law. An act that is unconstitutional is not criminal.

Article III of the Constitution
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.


United States Statutes at Large/Volume 1/1st Congress/2nd Session/Chapter 9
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That if any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere, and shall be thereof convicted, on confession in open court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death.[1]

A case beer is riding on this is that's the stance the gov't going to take.


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All they have to do is show evidence to a judge who decides if congress has sufficent evidence to put him in the traitor catagory

Jihadin wrote:SO being indicted as a traitor is up to congress

No, because if that were true, US v Milligan would never have taken place. The Supreme Court struck down Congress and the President declaring that Traitors did not get to have trials.

Frazzled wrote:
Where are you getting that from? Also it doesn't have to be Treason. Merely joining the enemy army makes you a valid target.

In a war zone. According to the UN and international law (which the US is signatory to), al-Awlaki was not an armed combatant, as he was not in a war zone, or had ever been to one, as far as is known. He was, however, a radical cleric and publisher of a magazine anti-US/Pro-terrorism.

dogma wrote:
And its been explained to you several times, very specifically, why it wasn't.
Moreover, you can cite the Constitution all you want, but Constitutional law is not criminal law. An act that is unconstitutional is not criminal.

"(g) Prohibition of Assassination. No employee of the United States Government shall engage in, or conspire to engage in, political assassination. " - Executive Order 11905, Sec. 5

"No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination." - Executive Order 12333, Sec 2.11

"It is especially forbidden * * * to kill or wound treacherously individuals belonging to the hostile nation or army." Hague Convention (this takes some explaining, and is expanded on by the Geneva Conventions to include attacking the enemy in locations where, under the laws of war, they are safe, such as nations not currently engaged in hostilities. It further proscribes acts such as declaring that no prisoners will be taken, and the act of killing those incapable of fighting back.)

In addition, it prohibits a nation from declaring that the rights of a target in such hostilities are null and void. This treaty was ratified by Congress.

Jihadin wrote:
A case beer is riding on this is that's the stance the gov't going to take.

Again, there's no grounds for that defense, as the government did not actually try him at any point. Their only real option is to claim the right of 'Self Defense' under international law, but this would require them to treat 'combatants' as 'prisoners of war'.



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Jihadin wrote:
All they have to do is show evidence to a judge who decides if congress has sufficent evidence to put him in the traitor catagory

Except they didn't.



Edit: Also, on if government officers or military officals can, in fact, face civil suit and be forced to pay liabilities:

Yes, they can, the Supreme Court ruled in Little v. Bareme. " ...that the instructions cannot change the nature of the transaction, or legalize an act which, without those instructions, would have been a plain trespass."

Frazzled wrote:
Where are you getting that from? Also it doesn't have to be Treason. Merely joining the enemy army makes you a valid target.

In a war zone. According to the UN and international law (which the US is signatory to), al-Awlaki was not an armed combatant, as he was not in a war zone, or had ever been to one, as far as is known. He was, however, a radical cleric and publisher of a magazine anti-US/Pro-terrorism.

Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), was a United States Supreme Court case that ruled that the application of[b] military tribunals to citizens when civilian courts are still operating is unconstitutional. [/b]

Where did you get Awlaki was condemned by a military tribunal?

Article III of the Constitution
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.


United States Statutes at Large/Volume 1/1st Congress/2nd Session/Chapter 9
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That if any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere, and shall be thereof convicted, on confession in open court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death.[1]

There is no "Due Process" in this because Judicial has nothing to do with it. A judge is required to say yay or nay on on the edvidence before him for Congress to decide to put him in "Kill or imprison". Constitution is clear on this.

Unlawfum combatant does not have the protection of the Geneva Convention



Little v. Bareme
was an 1804 decision of the United States Supreme Court which found that the President of the United States does not have "inherent authority" or "inherent powers" which allow him to ignore a law passed by the United States Congress.

The Act of Congress only provided for the capture of vessels traveling to France. "The Flying Fish was on a voyage from, not to, a French port, and was therefore, had she even been an American vessel, not liable to capture on the high seas." The Act limited the president’s authority by only allowing the capture of certain vessels. The President acted contrary to these limitations.

You actually reading these before you post them? Capt dropped the ball on capturing the vessel coming OUT of instead of INTO. He expanded the scope of his orders

Jihadin wrote:Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), was a United States Supreme Court case that ruled that the application of[b] military tribunals to citizens when civilian courts are still operating is unconstitutional. [/b]

Where did you get Awlaki was condemned by a military tribunal?

Without going back through the thread, I believe I quoted the relevant portion of the court's decision earlier.

"The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads to anarchy or despotism"

The court didn't just find that the military tribunal, in and of itself, was illegal. They found that the government did not, in and of itself, without altering the Constitution, have the right to revoke the rights of US citizens under any circumstances.



On this: lety me bold the relivent part.

Article III of the Constitution
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Further, it states that Congress shall declare the punishment of treason, not the fact of it, nor the guilt of a party of it, as an Attainder is one of three things:

"Attainder by confession results from a guilty plea at the bar before judges or before the coroner in sanctuary. Attainder by verdict results from conviction by a jury. Attainder by process results from a legislative act outlawing a fugitive" (in this particular case meaning that the legislative body has passed a law specifically declaring a person to be outside the protections of the law, which, as far as I know, does not apply to this case either.)

Jihadin wrote:
Constitution is clear on this.

It most certainly is.

Jihadin wrote:
Unlawfum combatant does not have the protection of the Geneva Convention

True, however, that does not have relevance here as al-Awlaki does not qualify under the Geneva Conventions as an 'unlawful combatant'.

'Unlawful Combatant - An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action'

So, at what point was he directly engaged in armed conflict?

Jihadin wrote:
You actually reading these before you post them? Capt dropped the ball on capturing the vessel coming OUT of instead of INTO. He expanded the scope of his orders

Actually, if you'd read it, you'd have noted that the Captain was following the direct orders of his superior, it was the President who had expanded the scope of the orders. The orders issued to him by the President via the Secretary of the Navy were as follows:

"A proper discharge of the important duties enjoined on you, arising out of this act, will require the exercise of a sound and an impartial judgment. You are not only to do all that in you lies to prevent all intercourse, whether direct or circuitous, between the ports of the United States and those of France or her dependencies, where the vessels are apparently as well as really American, and protected by American papers only, but you are to be vigilant that vessels or cargoes really American, but covered by Danish or other foreign papers, and bound to or from French ports, do not escape you." (Again, emphasis mine)

Under the rules of war at that time, and as would have been understood by the captains, this was an order to stop and search shipping no matter the flag they flew. The court does not delve into why Captain Little suspected that the Flying Fish was in fact, carrying American goods, only that the order was unlawful. Little was forced to pay for the lost profits of the owners of the Flying Fish for carrying out an unlawful order.

Since, technically, the order to assassinate al-Awlaki was, under the Constitution, unlawful, the persons who carried it out are liable to civil suit. Even the memo leaked from the President's legal team admits this was, technically, unlawful, as the US made no attempt to apprehend him alive.

Read a bit more into Little case

A separate order given by the executive enjoined seizure of American ships sailing from France, but this was not authorized by the Act of Congress

Is "unlawful combatant" an actual legal category in international law?

Military Commissions Act of 2006

Jihadin wrote:Military Commissions Act of 2006

That's US law, not International Law.

Because Geneva/International/Laws of War doesn't cover Unlawful Combatants

Yes, there is no legal definition in international law of an unlawful combatant because they are covered by the existing laws regarding soldiers and civilians.

Jihadin wrote:Military Commissions Act of 2006

Boumediene v. Bush, the Military Commissions Act of 2006 was found unConstitutional in it's denial of detainees the right of habeus corpus and amended in 2009. Following Hamdi v. Rumsfeld a US citizen has the right to challenge his 'illegal enemy combatant' status before a court.




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Kilkrazy wrote:Yes, there is no legal definition in international law of an unlawful combatant because they are covered by the existing laws regarding soldiers and civilians.

Artical 5 of the 3rd Geneva Convention allows the status of a detainee to be determined by a 'competent tribunal'. Until such time as a tribunal takes place, however, they are to be accorded the same rights as a POW.

The only class of combatants denied protection under the Convention in this manner are mercenaries.

"A mercenary shall not have the right to be a combatant or a prisoner of war."

Notice the difference between Boumediene and Hamdi compare to Awlaki

Also go back and try "attainder of treason"

While the United States Constitution (in article III, section 3) prohibits corruption of blood, it is nonetheless possible in many states for a crime to affect the inheritance rights of innocent relatives due to the slayer rule.

Art 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:
(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

Show me where in the Article that covers Unlawful Combatant

BaronIveagh wrote:

Jihadin wrote:Military Commissions Act of 2006

Boumediene v. Bush, the Military Commissions Act of 2006 was found unConstitutional in it's denial of detainees the right of habeus corpus and amended in 2009. Following Hamdi v. Rumsfeld a US citizen has the right to challenge his 'illegal enemy combatant' status before a court.




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Kilkrazy wrote:Yes, there is no legal definition in international law of an unlawful combatant because they are covered by the existing laws regarding soldiers and civilians.

Artical 5 of the 3rd Geneva Convention allows the status of a detainee to be determined by a 'competent tribunal'. Until such time as a tribunal takes place, however, they are to be accorded the same rights as a POW.

The only class of combatants denied protection under the Convention in this manner are mercenaries.

"A mercenary shall not have the right to be a combatant or a prisoner of war."

Exactly. A mercenary would be counted as a murderer if he shot someone.

Jihadin wrote:Notice the difference between Boumediene and Hamdi compare to Awlaki

Also go back and try "attainder of treason"

You'll have to explain that first part, it's too vague.

On the second:

"No Bill of Attainder or ex post facto Law shall be passed." - Article 1 section 9 of the US Constitution. Effectively, this means the only legal way for someone to suffer an 'attainder of treason' is via the Judicial Branch, as a law declaring a person or group as being guilty of a crime is unconstitutional.

Show me where in the Article that covers Unlawful Combatant

"(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces." would apply, as Section 3 recognizes non-international conflicts between two parties. Granted, though, the US-Terrorist relationship is a bit cloudy. Currently the US is claiming they qualify as hostis humanis generis but then overlook that crimes in that category, while they do usually result in executions, still require public trials. The days of hanging them from the yard arm, as it were, have been over a long time.





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Kilkrazy wrote:
Exactly. A mercenary would be counted as a murderer if he shot someone.

Sadly, this fact has done more to destabilize democracy in Africa than if they had simply nuked half the capitols in the place.