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A vehicle for venting on philosophy, religion, and the general state of things. Proprietor: C. W. Powell

Sunday, November 09, 2003

Those who fear that Bush is overthrowing the constitution should relax and read this article.

Matthew J. Franck on Andrew Napolitano on National Review Online: "The administration's argument that the Gitmo detainees are beyond the reach of habeas relief is based on the 1950 Supreme Court precedent of Johnson v. Eisentrager (never mentioned by Napolitano), which held that the protections of the U.S. Constitution had no extraterritorial application to German nationals - held in Germany under American control at an American-administered military prison - who had been convicted of war crimes as unlawful enemy combatants. In last spring's ruling in Al Odah v. United States, the D.C. Circuit held that the Eisentrager precedent applies to the detainees at Guantanamo, because the base is not sovereign U.S. territory but is administered by American forces under a lease agreement with Cuba. In both cases, the court held, the individuals in question simply had no rights an American court could vindicate - they were aliens, held overseas, for acts committed overseas, and the fact of their custody in the hands of the American military was not enough to trigger the protections of the Constitution in a court of law sitting in the United States. It remains to be seen whether the Supreme Court will review the D.C. circuit court's decision, and, if it does, what it will say about how similar the two situations are - or whether Eisentrager should survive as a precedent at all."

"Al-Halabi is a member of the American armed forces, and as such is subject to the Uniform Code of Military Justice. He is punishable for any criminal acts he commits under that Code, no matter where he commits those acts. It is accepted as a matter of law that soldiers, sailors, airmen, and marines are liable for crimes under the UCMJ, and subject to court-martial, whether they commit them at Fort Campbell, Kentucky, or Ramstein Air Force Base in Germany, or anywhere else they happen to be stationed. And the reasons are simple: Military personnel's strict adherence to the Code is essential to the maintenance of duty and discipline at home and abroad, and — not least important — they have all sworn an oath that subjects them to it."
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