These parlous times

[redbird]

It was very odd, reading a Newsday article on the Patriot Act, to find myself wondering on whether said Act had restrictions on speculating in print/online about a person's identity, when that identity is being concealed from his lawyer by the government.

Comments

[zsero.livejournal.com]

I don't see how such a restriction could possibly be constitutional. Nor do I really see a reason why anyone would want to impose such a restriction in the frist place. So long as the speculation was genuinely that, and not a cover for a leak. Even in WW2, once the government had satisfied itself that Astounding had not received any leaks from the Manhattan Project, and was just speculating based on known physics, it did not take any further action.

[redbird]

I don't see how imprisoning US citizens indefinitely without charge, and ignoring Supreme Court rulings on the subject, can be constitutional either, so that doesn't comfort me as much as it might.

[zsero.livejournal.com]

If you are referring to prisoners of war, it is obvious that keeping them is constitutional, and has always been the practise of the USA in wartime. POWs are always kept until the President decides to release them (German prisoners were still in US custody several years after VE-day), and they are obviously held without charge, since most POWs (i.e. those protected by the Geneva Conventions) have not committed any crime, and cannot be charged with anything. The prisoners at Guantanamo Bay, since they have been determined to be unlawful combatants, and therefore unprotected by the Geneva Conventions, can be charged with crimes, either in civilian court or before military tribunals, in the President's sole discretion; but they don't have to be charged in order to be held — it would be absurd to claim that they have more rights than lawful combatants, who may be held without charges!

Nor have POWs ever had access to habeas corpus, or been subject in any way to the jurisdiction of the judicial branch, so although to the best of my knowledge the administration has chosen to comply with the Supreme Court's recent (and IMHO mistaken) rulings on the matter, I don't believe they are under any obligation to do so in future, should it become inexpedient.

In any case, even if we posit a future administration willing to ignore the constitution, I don't see why it would want to stop anyone from speculating about the subjects of secret subpoenas, so long as it was satisfied that such speculation was genuinely that, rather than masking a leak of inside information.

[penngwyn.livejournal.com]

So now we have *three* tiers of incarcerees: Persons, accorded rights by the Constitution; POWs, accorded different rights by International Law; and "whatever we're calling them this week" who, as neither fish nor fowl, can be denied either set of rights at whim.

AT VERY LEAST, the entrance requirements for the third category must be clearly and publicly declared -- or else we're ALL potentially in that class.

[zsero.livejournal.com]

Not three tiers. There are prisoners of the criminal justice system, which is subject to the jurisdiction of the civilian courts, habeas corpus, and the 4th, 5th and 6th amendments. And there are prisoners of war, which are subject to the sole jurisdiction of the military, and its own justice system. The judicial branch of government has no jurisdiction over these prisoners at all; what happens to them is simply none of its business. Such prisoners need not even be suspected of having committed a crime, let alone be charged with one, and they are held pretty much at the president's pleasure. This has always been the case, since the beginning of the constitution.

The Geneva Accords are an agreement that the USA entered into about half-way through its history, to treat some POWs according to certain defined standards, in return for the powers for which they were fighting agreeing to do the same to captured USAns. It is obvious that if any belligerent power does not treat captured USAns as the Accords demand, then the USA is not obliged to treat its soldiers any better. What would be the point? But in any case, the Accords specify which prisoners they protect, and anyone not covered is left as they were before the Accords were signed in the first place. Which is that the military can do to them anything it likes, including executing them.

If there is doubt about whether someone is indeed properly held as a prisoner of war, they have access to the military justice system, and can appeal their case all the way up to the CinC. They do not have access to the civilian courts, because the conduct of war belongs exclusively to the president, and the judicial branch has no right to a say on any aspect of it.

[redbird]

There is no precedent for treating civilian U.S. citizens, grabbed off the streets of the United States, as prisoners of war. If the president can do that to anyone, he can do it to everyone. Yes, espionage and treason are both crimes--and can be and are handled by the civilian court system, not by "we're not going to tell you what we think he's done, just lock him up forever".

Even were there a precedent, there is no justice in it.

And none of what you are citing connects to telling an organization that it may not know, much less publish, the name of its client in a civilian court proceeding.

[penngwyn.livejournal.com]

That's all well and good, except for the tiny little nit that the current administration, after two years of going back and forth about whether the situation in Iraq, Afghanistan, et al, is or is not a war (depending on whether the legal implications favor their chosen course of action or not), seems to have finally decided that no, this is not a war.

Okay, I (like General Myer(s?)) live in the hope that the re-branding "Global Struggle Against Violent Extremism" actually mans something: that all rhetorical resort to "conduct of war", "war powers of the CinC", etc in this matter is MOOT.

There are no prisoners of war to whom to decide whether the Accords apply or not. There are prisoners of the justice system, and prisoners who are denied the justice system.

[I recognize that many Americans cynically assume that the rebranding of the conflict is no more meaningful than calling a screwdriver a "metal fastener installation tool" to justify paying 350 tax dollars for it. I'm trying to give the folks in charge some time to prove that cynicism wrong.]