Bush Military Court Order--Basic questions
gln1 at COLUMBIA.EDU
Wed Nov 21 08:55:39 PST 2001
The absolutely key precedent in this era is Wong Wing v. US, 163 U.S. 228
(1896) (holding that an illegal alien found in the US cannot be imprisoned
for one year at hard labor without the protection of a criminal trial).
There aren't Supreme Court cases that go clause by clause through the bill
of rights because there has been no need for them.
I have written at some length about the personal (and territorial) scope
of constitutional rights, also in historical perspective, in a book
entitled Strangers to the Constitution, relevant parts more accessible in
an earlier draft in an article "Whose Constitution?" in 100 Yale L.J.
I discuss the right of aliens to habeas corpus in "Habeas Corpus,
Executive Detention, and the Removal of Aliens," 98 Colum. L. Rev. 961
(1998). That article doesn't analyze the President's authority to suspend
the writ of habeas corpus (surely originalists should say he has no such
power, but I am not an originalist). Congress clearly drafted the
immigration provisions of the USA PATRIOT act in light of the Supreme
Court's admonition about aliens' rights to habeas corpus last June in INS
v. St. Cyr.
I hope that helps; no apologies for self-reference.
On Tue, 20 Nov 2001, Michael Curtis wrote:
> Does anyone know of precedent on this very basic question: may aliens lawfully resident in the US who are accused of run of the mill federal crimes be tried and imprisoned if found guilty but denied e.g., the right to a jury trial, to grand jury indictment, to
> confrontation, to counsel, proof beyond a reasonable doubt, etc. That is if congress were to decide that aliens changed with any federal crime would not receive the protections of the Bill of Rights but would be tried in a special alien court, with few if any
> procedural guarantees what if any Supreme Court decisions would bear on the issue? Of course, there would be an equal protection question.
> Michael Curtis
> "Eric M. Freedman" wrote:
> > I wonder how much this matters.
> > 1. The Congressional resolution probably does everything legally that a declaration of war would do.
> > 2. But so what:
> > a. We still haven't decided whether one can declare war against a non-state, and the Prize Cases would seem to argue against it.
> > b. Even if there is a war, declaring something to be a military offense doesn't make it so. (Miligan)
> > c. Conversely, even when there is not a war, I would think that if our forces were engaged in combat against the organized armed forces of a state (say, the Mayaguez incident), we could exercise military jurisdiction over opponents who fell into our hands.
> > -E.
> > *******************
> > Prof. Eric M. Freedman
> > Hofstra Law School
> > Hempstead, NY 11550
> > LAWEMF at Hofstra.edu
> > Tel. 516-463-5167
> > Fax 516-463-5129
> > Home Office: Tel. 212-665-2713
> > Fax 212-665-2714
> > *******************
> > >>> reynolds at LIBRA.LAW.UTK.EDU 11/17/01 07:48PM >>>
> > I agree that this matters. Requiring the "war power" to be
> > exercised only after a momentous vote of Congress has an
> > obvious -- and important -- check-and-balance function, which is
> > why I disagree with those on this list who maintain that war
> > declarations are of no significance. I note that Yakus and
> > Youngstown both seem to attach considerable importance to the
> > matter as well.
> > Original message from: Judith Baer
> > >Another problem: this isn't a time of war. Congress hasn't
> > declared one.
> > >When FDR issued his executive order, there was a declared war.
> > I apologize
> > >if this is repeating an earlier post--it's such an obvious point that I
> > >would expect someone to have made it.
> > >
> > >Judy Baer
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