Constitutional Discussions

I will begin with a pet peeve of mine. Many people in our country think we live in a democracy. Please explain the form of government our founders set forth.

They are saying the that acorn cannot be punished retroactively so to speak.  Is the cancellation of ACORN contracts for manifest malfeasance such an Unconstitutional act? 

I heard Ann Coulter on the radio the other day (I forget who was the host) stating that Eric Holder as Attorney General had as much right to move KSM to NYC for a criminal trial as she does (or anyone else for that matter).  Effectively, constitutionally, she claims that Holder has absolutely no authority.  Your thoughts?  Seemed like a cogent argument to me!

I will begin with a pet peeve of mine. Many people in our country think we live in a democracy. Please explain the form of government our founders set forth.

-veritas

To quote Benjamin Franklin when asked by a young woman "Sir, what form of government have you given us", he replied "A Republic madam, if you can keep it"

Contrary to all of the most fervent desires of liberals, we do NOT live in a Democracy, we live in a Constitutional Representative Republic.  In simple terms, the difference between a democracy and a republic is that in a democracy, the people hold all power, and make all of the decidsion by simple majority.  A democracy is 2 wolves and a sheep deciding what to have for lunch.  In a democracy, 50.1% of the population can enslave 49.9% of the population, and there's nothing that the 49.9% can do about it.  On the other hand, in our constitutional representative republic, those who  are permitted to vote select citizens to represent them, and to speak for them in our government, and no part of the people may be subjugated without it being constitutionally authorized, and then only after being adjudicated guilty of a crime.

I hope that helps.

They are saying the that acorn cannot be punished retroactively so to speak.  Is the cancellation of ACORN contracts for manifest malfeasance such an Unconstitutional act? 

-hydrogia

What they're talking about is a Bill of Attainder (Article 1, Section 9, Clause 3) of the Constitution.  A Bill of Attainder, specifically is an act of the legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial.  In this case, some on the left (you know, the ones that support ACORN) are trying to claim that by de-funding ACORN that Congress has declared them guilty (without benefit of a trial) and punishing them by withholding their funding. In a purely constitutional sense, ACORN has not been declared guilty of anything, Congress is merely noting that there is sufficient smoke for them to want to withhold funding until an investigation can determine if they are, or are not, in compliance with federal law.  Secondly, since the taxpayer funding is simply being withheld, and are not funds that ACORN raised independently being seized, there is no constitutional issue.

I heard Ann Coulter on the radio the other day (I forget who was the host) stating that Eric Holder as Attorney General had as much right to move KSM to NYC for a criminal trial as she does (or anyone else for that matter).  Effectively, constitutionally, she claims that Holder has absolutely no authority.  Your thoughts?  Seemed like a cogent argument to me!

-osufan

I disagree.  Firstly, Eric Holder, as the Attorney General, is the Chief Law Enforcement Officer in the United States, and as such it is within his purview to determine if KSM will be tried under civilian or military law.  Since he had determined that he is to be tried under civilian law, and in a civilian court, and since 9-11 took place in multiple jurisdictions, lacking a court order for Change of Venue, KSM MUST be tried in one of the jurisdictions that the "crime" occurred (this is settled US law) it is perfectly within his authority to bring KSM to New York  (one of the jurisdictions involved) to stand trail for his part in that crime.

I think incorrect facts might be leading you astray, 03.  KSM was captured on foreign soil, in a war zone, by either the U.S. or Pakistan military (I forget which).  KSM was deemed a terrorist and military combatant.  He was never turned over to U.S. law enforcement and has been kept in U.S. military custody since his capture.  The only way Holder can claim any jurisdiction in the KSM case is by virtue of the fact that KSM is on "U.S. soil," which is the same reason why KSM can claim he has Constitutional rights.

Me thinks the issue lies in the fact that the U.S. Attorney General encroached on the workings of the U.S. military without the President's direct involvement and explicit direction.  I believe Ann Coulter and others think Holder over-stepped his bounds and basically inserted himself, unconstitutionally, into the chain of command of the U.S. military.

Yes, that is, I believe, much of Ann's argument, that as KSM never in fact entered on US soil, he is not subject to constitutional protections nor under the purview of Holder.  Thanks, C&E

But the crime he was involved in was committed on US soil, whether he was actually here when it occurred in moot.

Acts of War and crimes are two separate matters. Acts of War are not in the jurisdiction of the Justice Dept because they are not crimes in the normal and legal definition. This confusion has and will continue to cost us dearly in blood and treasure by it's very existence and by the ruthless exploitation of the canny Jihadi
network who can use every advantage we give them, and do.

I think incorrect facts might be leading you astray, 03.  KSM was captured on foreign soil, in a war zone, by either the U.S. or Pakistan military (I forget which).  KSM was deemed a terrorist and military combatant.  He was never turned over to U.S. law enforcement and has been kept in U.S. military custody since his capture.  The only way Holder can claim any jurisdiction in the KSM case is by virtue of the fact that KSM is on "U.S. soil," which is the same reason why KSM can claim he has Constitutional rights.

-causeaneffect

GOOD, this is the type of discussion I like.  OK, where he was captured is a matter of complete indifference just as it doesn't matter if someone commits a crime in California, but is captured in France.  Once they are in US custody they can and will be tried in the jurisdiction the crime was committed in.  Secondly, SCOTUS has determined that all of the prisoners at Club Gitmo must be extended Constitutional protections, including Habeas Corpus, which means that if they are charged with a civilian crime (as in this case) they must be given their day in a CIVILIAN court, if only to determine that the military does have jurisdiction to try the case.  It's no different than when a Soldier commits murder (whether on, or off Post), the AG of the State can insist that that Soldier be tried in civilian court, the Provost Marshal can ask that they be tried in civilian court, or they can be tried by the military, so as US AG, the decision as to where KSM is to be tried is his.  Another advantage that isn't discussed much is the fact that KSM can be tried in NY for civilian crimes, AND he can be charged and tried in a military tribunal for other crimes associated with GWOT that occurred outside of the US, whereas if he was tried in a military tribunal for the 9-11 attacks, he could NOT be tried in a civilian court for the same thing (double jeopardy).

Me thinks the issue lies in the fact that the U.S. Attorney General encroached on the workings of the U.S. military without the President's direct involvement and explicit direction.  I believe Ann Coulter and others think Holder over-stepped his bounds and basically inserted himself, unconstitutionally, into the chain of command of the U.S. military.

-causeaneffect

While I agree that this case SHOULD be handled by a military tribunal (no enemy combatant has EVER been tried in a civilian court before), the fact remains that it is up to the US Attorney to make that determiniation since SCOTUS ruled that they must be extended full Constitutional protections, which does not happen in military tribunals.  Essentially, SCOTUS screwed us, and now we're having to deal with the fallout.  Part of the reason that this case is so difficult, and so unprecedented, is that this is the first time since WWII when "enemy combatants" have been brought to justice for 'crimes' committed on US soil.  In that case, we had captured 8 German soldiers who were planning on engaging in sabotage here in the US, but they were captured before they could execute their plans.  They were tried by military tribunal, and executed for their crimes, but the jurisdiction was unquestioned because they were in fact German soldiers, operating outside the bounds of Geneva protection.  Since 9-11, we're not dealing with uniformed (or for that matter out-of-uniform) soldiers of a nation state, we're dealing with terrorist cells who operate with little or no guidance from a "superior officer", who don't wear uniforms, and who consistantly operate outside the bounds of GCIII, but our Soldiers continue to operate under GCIII, and instead of simply putting a bullet between the eyes of these dirtbags, they take them into custody, and it is at that point that they receive the benefits of our laws.  This is what happens when a nation lacks the will to tell it's military to "KILL 'EM ALL, LET GOD SORT 'EM OUT!" 

Whatever the final outcome of the jurisprudence, there still remains the question about where to draw the line within the executive branch of government as to where the Justice Departments authority meets the responsibilities of the Commander and Chief when it comes to affairs of the military, the chain of command, etc.  

Historical notes...in addition to capturing, trying and executing Nazi saboteurs during WWII, the U.S. also captured the German U Boat 505 and detained the crew in secret.    The U.S. also detained thousands of other German POWs on U.S. soil, including the bunch that tried to escape from AZ to Mexico.

http://www.historynet.com/the-not-so-great-escape-german-pows-in-the-us-during-wwii.htm/1

10th Amendment Movement is gaining still further ground.

Here is just an extract from the link above.  I urge everyone reading to click and investigate.

by State Rep. Matthew Shea (WA-4th)
This summer, legislators from several states met to discuss the steps needed to restore our Constitutional Republic. The federal government has ignored the many state sovereignty resolutions from 2009 notifying it to cease and desist its current and continued overreach. The group decided it was time to actively counter the tyranny emanating from Washington D.C.
From those discussions it became clear three things needed to happen.

1. State Legislatures need to pass 10 key pieces of legislation “with teeth” to put the federal government back in its place.
2. The people must pass the legislation through the Initiative process if any piece of the legislative agenda fails.
3. County Sheriffs must reaffirm and uphold their oaths to protect and defend the Constitution of the United States.

With the advent of the Tea Party Movement, many people have been asking how exactly we can make the above reality. What follows is Part I of the outline of that plan regarding state legislation, the action steps any concerned citizen can take to see this legislation to fruition, and the brief history and justifications behind each.

[read more]

The debate as to the status of the enemy under the Geneva Convention, moral war and
what is victory, is OUR debate. The culture that produced the Geneva Convention is the culture that the Jihad is sworn and determined to destroy. Any confusion regarding such things is very useful to our opponents who are not encumbered with any such distractions or quandarys
which they naturally endeavor to increase. A visit to Japan or Germany today, demonstrates the true greatness of the US and any notion we cannot defeat THIS enemy with a similar focus and
determination is absurd. We must have the unified will to win or be defeated by these
murderous religious fanatics.

Whatever the final outcome of the jurisprudence, there still remains the question about where to draw the line within the executive branch of government as to where the Justice Departments authority meets the responsibilities of the Commander and Chief when it comes to affairs of the military, the chain of command, etc.  Historical notes...in addition to capturing, trying and executing Nazi saboteurs during WWII, the U.S. also captured the German U Boat 505 and detained the crew in secret.    The U.S. also detained thousands of other German POWs on U.S. soil, including the bunch that tried to escape from AZ to Mexico.[url]

-causeaneffect

I concur that there does need to be a line which is not to be crossed, and until SCOTUS made their ruling granting Constitutional rights to these scumbag, dog-raping, worthless POS's (sorry for the colorful metaphores), as a Veteran I was under the impression that there was one.  Since their decision however, that line has not only been blurred, but essentially obliterated, and as a result now every time a Soldier, Sailor, Airman or Marine takes one of these terrorists prisoner on the battlefield, he's going to have to take the time to Marandize him, and that's just INSANE!!  To be honest, while I do understand the rational behind the decision (not that I agree with it), I believe that it's going to end up being counterproductive in the sense that if it gets to be too much of a p.i.t.a. for our SSAM's to deal with all of the new rules, there's going to be a sudden and drastic reduction in the number of prisoners being taken because there does come a point where you have to decide if it's better to take a prisoner for the possible intel you can get from him, or if it's better to simply give him an intra-cranial injection of Vitamin L and not have to deal with the Bravo Sierra.

I suppose that now is as good a time as any for me to make a point of clarification. A very long time ago I took an Oath to "...support and defend the Constitution of the United States against all enemies, foreign and domestic...", and while I may be NOLOAD, I have never been relieved of my Oath to the Constitution, and as such, while I may not always agree with the wisdom of any particular law, decision of SCOTUS, or even of POTUS, so long as those laws and/ordecisions are not repugnant to the Constitution I will "...support and defend..." them.  At the same time, when those laws or decisions are repugnant to the Constitution, I will strongy oppose them to the best of my ability.  Simply put, my fealty is to the Constitution, and not to any particular political party, so while we may disagree from time to time, please understand my motivation.

Well okay then.  Can we just focus on Miranda and KSM for a moment?  I cannot imagine any circumstance whatsoever that would have required, requested, or recommended KSM be read Miranda rights at Guantanamo.  I do not know whether he's been Mirandized at this point in time (but I assume he was at some point, or else Eric Holder is more of a non-blithering but blathering idiot than he appears to be).

Therefore, if KSM was not Mirandized upon taken into custody, then.....all of his information/confessions/etc. will not be admissible as evidence?  Not seeing a positive outcome here.  Another reason why I think Holder/Obama are just plain old dumb if they think KSM will end up executed...

With respect to the Miranda rights stuff...that only comes into play if statements from the defendant are used against him in a court of law.  Holder thinks he has enough goods on KSM to get a conviction without using KSM's words against him.  The challenge for the defense is to weigh the pros and cons of putting KSM on the stand.  If Holder doesn't touch evidence that might touch on the Miranda issue, then the defense can't bring that sort of stuff up.  On the other hand, anything KSM says on the stand in his defense will expose him to all sorts of discomfort from the prosecution.

Meanwhile, our volunteer soldiers, our young people, such as the Seals,  face Courts Martial.
Holder has a direct conflict of interest in this case anyway and should be recused. This is totally nuts and outside the framework of the constitution, not to forget common sense.
Also, What is reasonable about the cost of this fiasco? Are the courts not already heavily burdened and strained somewhat beyond recognition.?

Miranda rights should not be factor even if they try.
The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation.

1. Evidence must have been gathered
2. The evidence must be testimonial
3. The evidence must have been obtained while the suspect was in custody
4. The evidence must have been the product of interrogation
5. The interrogation must have been conducted by state-agents and
6. The evidence must be offered by the state during a criminal prosecution.
7. The evidence must have been the product of interrogation. A volunteered statement by a person in custody does not implicate Miranda.
8. Miranda warnings do not need to be administered when there is an imminent threat to public safety

Though on the flip side of the coin, beginning in 2009, some detainees captured in Afghanistan have been read their Miranda rights by the FBI. Which makes one think the whole plan was to bring them back for trial here in the States.