(a) In General.—That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.I think that includes Padilla, but I think it wouldn't include, say, dios and I converting to Islam and conspiring to set off a nuke in Austin. Not that that would stop them from holding us incommunicado without trial for however long they liked and making up some crap about our Al-Qaeda ties. Dios wouldn't mind since he's all like LN(E), but it would really chap my NG hide.
But it is insisted that Milligan was a prisoner of war, and therefore excluded from the privileges of the statute. It is not easy to see how he can be treated as a prisoner of war when he lived in Indiana for the past twenty years, was arrested there, and had not been, during the late troubles, a resident of any of the states in rebellion. If in Indiana he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana; but, when tried for the offence, he cannot plead the rights of war, for he was not engaged in legal acts of hostility against the government, and only such persons, when captured, are prisoners of war. If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties?and also:
Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a necessity in one state, when, in another, it would be 'mere lawless violence.'The courts were open and in the proper and unobstructed exercise of their jurisdiction in Chicago in 2002. Unobstructed, that is, except by the executive branch of the federal government itself. Even the dissent in Milligan only defends the right of Congress to establish martial law when ordinary civilian courts become inadequate to ensure public safety; that defense rests on Congress' power to raise armies and navies, to regulate those forces, and to declare war, none of which are powers that the President shares. That is, the dissenters contemplated the establishment of martial rule through Congressional statute, not by executive fiat. So even in its dissent, Milligan does not justify this administration's grossly unjust, illegal, and unilateral actions.
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Developments here for example
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" ... The change in Padilla's status, just days before the government's legal papers were due in his appeal to the Supreme Court, suggested to many legal observers that the administration wanted to keep the court out of the case.
"The position of the executive branch," said Eric Freedman, a law professor at Hofstra University who has consulted with lawyers for several detainees, "is that it can be judge, jury and executioner."
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posted by hank at 7:57 AM on November 29, 2005