|
|
|
Mespo_man
Skeptic Friend
USA
312 Posts |
 Posted - 12/17/2001 : 12:42:04 [Permalink]
|
quote:
1. The individual is suspected of a crime.
2. The individual is 'in custody' (meaning he is not free to leave), by a LAW ENFORCEMENT AGENCY.
3. The LEA intends to question the individual about the crime he is suspected of committing.
On the surface, these apply, but the military is not and cannot be construed as a law enforcement agency, per Posse Comitatus.
Ahhhhh. Now I get it. Walker is being held on a Navy ship, but the Navy is not a law enforcment agency. He is technically free to leave, but to do so would require...
a. A VERY long swim.
b. The illegal requisition of naval property (a lifeboat) for the explicit purpose of egress from a naval vessel engaged in military operations. (interfering with the lawful operation of a U.S. government naval vessel).
Those JAG folks thought of EVERYTHING!  |
 |
|
|
Garrette
SFN Regular
USA
562 Posts |
Posted - 12/17/2001 : 12:53:57 [Permalink]
|
quote:
Ahhhhh. Now I get it. Walker is being held on a Navy ship, but the Navy is not a law enforcment agency. He is technically free to leave
Aaaaghh. The difficulties of professorship online. The central issue is not whether he is free to leave; he obviously is not. The issue, if there is one here, is whether the military is a law enforcement agency. It is not.
As a Security-type person, I've conducted bunches of investigations and interviews, even interrogations. In most cases, the subject was quite free to leave. In a couple, though, he/she was not. So did I have to read them Miranda Rights? Absolutely not! Never! Ever! Never never never never never.
Condition 1: Did I suspect them of a crime? Yes.
Condition 2: Did I intend to question them about that crime? Yes.
Condition 3: Were they being held by a law enforcement agency? No. They were being held by a private citizen, even in the instance where, due to "Shopkeeper Laws" and the like, I had technically 'arrested' them. No Miranda reading was required or even encouraged. Everything they told me was admissible. They could ask for a lawyer and I could laugh and say "No, way, freakazoid."
Now, on the actual, practical side of this, the scenarios never play out quite so dramatically. For one thing, you risk crossing the line into false imprisonment and even kidnapping.
The point is, Miranda Rights do not apply as often as most people believe.
Plus, as I've hinted at, the military is actually extremely careful of people's rights. I'd lay good money that Walker's rights--as defined for an American citizen--are being quite well looked after.
And finally, as I've said before, and Trish and Valiant have said recently, I think the one real issue is Walker's citizenship and whether or not he legitimately renounced it prior to taking any action that could be considered treasonous.
It's all academic though because we don't know enough.
My kids still love me. |
|
|
|
Trish
SFN Addict
USA
2102 Posts |
Posted - 12/17/2001 : 13:45:13 [Permalink]
|
There should be no question as to whether the military is a law enforcement agency. Aren't law enforcement officials all considered *sworn officers* of the law. That oath must, of necessity, be different to the oath sworn by the military. (Technicalities - I know.)
Isn't the larger question - Is he a US citizen to be tried in US courts or Afghani to be tried by international courts. Won't they convene an international court for this?
I know Bush and Rumsfeld and Ashcroft would want nothing to do with an international court - but wouldn't there be less sense of vengence against the Taliban and more justice?
It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence never to practice either of them. -Mark Twain |
|
|
|
Donnie B.
Skeptic Friend
417 Posts |
Posted - 12/17/2001 : 18:43:28 [Permalink]
|
I think I have the perfect solution.
Let him go. In public.
In Texas.
-- Donnie B.
Brian: "No, no! You have to think for yourselves!" Crowd: "Yes! We have to think for ourselves!" |
|
|
|
Tim
SFN Regular
USA
775 Posts |
Posted - 12/18/2001 : 01:30:41 [Permalink]
|
I would just like to remind everybody that no matter what our feelings are toward our young Mr. Walker, this is not going to be an open and close case for the gov't, if they choose to pursue it. Even though this is a unique case, there is plenty of precedent to consider. The extraordinary nature of treason, lends to extraordinary trials, and almost guaranteed appeals.
Also, I have heard many people mention the relevance of citizenship. Citizenship has very little to do with criminal law under US jurisdiction. A non-citizen is generally not immune to national, state or local criminal law. Furthermore, there is precedent of non-citizens, (resident aliens), being tried for treason. What is required is to establish that the accused owes an allegiance to the US, and I believe there is little doubt regarding this point. If, in fact, Walker has made a public renunciation of his US citizenship, this could actually work into the hands of the prosecution in an attempt to establish hostile intent.
Furthermore, I am under the impression that the Taliban regime was never recognized by the US gov't. Therefore, if the defense tries to establish that Walker was given citizenship by the Taliban, and as such is immune to the charge of treason, then the prosecution merely needs to point out that that particular gov't never existed under US law.
|
|
|
|
Garrette
SFN Regular
USA
562 Posts |
Posted - 12/18/2001 : 04:43:29 [Permalink]
|
Tim, this is extremely interesting, particularly this point:
quote:
If, in fact, Walker has made a public renunciation of his US citizenship, this could actually work into the hands of the prosecution in an attempt to establish hostile intent.
But I question the precedent for trial of non-citizens for treason. (It's an honest question; I would assume you are wrong, but I simply do not know.) Can you point to some references.
I have to fall back on my early admission of not being a legal expert in this arena.
My kids still love me. |
|
|
|
Valiant Dancer
Forum Goalie
USA
4826 Posts |
Posted - 12/18/2001 : 07:08:25 [Permalink]
|
quote:
I think I have the perfect solution.
Let him go. In public.
In Texas.
-- Donnie B.
Brian: "No, no! You have to think for yourselves!" Crowd: "Yes! We have to think for ourselves!"
Yeah, I can see it now.
Guard: Well, Mr. Walk
(high powered rifle shot)(thud of body hitting ground)
Guard: er.
|
|
|
|
Donnie B.
Skeptic Friend
417 Posts |
Posted - 12/18/2001 : 08:17:59 [Permalink]
|
quote:
quote:
I think I have the perfect solution.
Let him go. In public.
In Texas.
-- Donnie B.
Brian: "No, no! You have to think for yourselves!" Crowd: "Yes! We have to think for ourselves!"
Yeah, I can see it now.
Guard: Well, Mr. Walk
(high powered rifle shot)(thud of body hitting ground)
Guard: er.
Heh, yeah, that's about how I pictured it.
By the way, I'm not really advocating that this fellow be turned over to the mob for some rough justice. In fact, the chances are pretty good that he's going to be prosecuted and, despite the difficulties, is likely to be punished far beyond what I'd think is appropriate for his role.
After all, I think we can all agree that he had no position at all in the Taliban or al Qaeda leadership. Can you imagine Osama or his lieutenants trusting an American with advance knowledge of tomorrow's menu, let alone any terrorism plans?
-- Donnie B.
Brian: "No, no! You have to think for yourselves!" Crowd: "Yes! We have to think for ourselves!" |
|
|
|
Tim
SFN Regular
USA
775 Posts |
Posted - 12/18/2001 : 08:31:08 [Permalink]
|
Okay, here's where I drop to my knees, and groveling, beg for forgiveness. In Kawakita v. U.S. (1952), the petitioner was of dual nationality, and had sworn an oath of allegiance to the US as a minor. When he came of age, he changed his registration to Japan, and traveled to China, where he committed the ‘overt act' upon US POW's. The decision; “The evidence was sufficient to support the finding of the jury that he had not renounced or lost his American citizenship at the time of the overt acts charged in the indictment.” Of course there were many more twists and turns, but that about sums it all up. Kawakita was in fact judged to have US citizenship.
Furthermore, in review of ‘Kawakita' I found that “Section 402 creates a rebuttable presumption that a national in petitioner's category expatriates himself when he remains for six months or longer in a foreign state of which he or either of his parents shall have been a national.” (Kawakita was found to have retained his US citizen through Section 401 of the Nationality Act) Anyway, this leaves the status of Walker's citizenship, perhaps, hinging on his location during the seven months of his disappearance from Northern Pakistan, until the time of his reappearance after the prison uprising in Northern Afghanistan. Unfortunately, Walker's citizenship cannot be established by Section 401 of the Nationality Act since it has been repealed, and I am unsure of the present status of Section 402.
So, Garrett, I stand corrected on the precedent, which pretty much invalidates my dismissal of citizenship argument. Therefore, in my mind, the question of citizenship is still open for debate in a trial on treason charges. The gov't must prove citizenship, an overt act against the US as witnessed by two people, and an intent to betray his country by means of that act, (Cramer v. U.S., 1947). Sounds pretty tough, considering they can still face the ‘Brainwashing defense'. Maybe, the executive will settle for the ‘easier' route of a war crimes trial before a military court.
|
|
|
|
Garrette
SFN Regular
USA
562 Posts |
Posted - 12/18/2001 : 09:39:08 [Permalink]
|
Darn. It was an intriguing line of thought.
Ah, well. Thanks for the info.
My kids still love me. |
|
|
|
Valiant Dancer
Forum Goalie
USA
4826 Posts |
Posted - 12/18/2001 : 10:41:56 [Permalink]
|
quote:
Okay, here's where I drop to my knees, and groveling, beg for forgiveness. In Kawakita v. U.S. (1952), the petitioner was of dual nationality, and had sworn an oath of allegiance to the US as a minor. When he came of age, he changed his registration to Japan, and traveled to China, where he committed the ‘overt act' upon US POW's. The decision; “The evidence was sufficient to support the finding of the jury that he had not renounced or lost his American citizenship at the time of the overt acts charged in the indictment.” Of course there were many more twists and turns, but that about sums it all up. Kawakita was in fact judged to have US citizenship.
Furthermore, in review of ‘Kawakita' I found that “Section 402 creates a rebuttable presumption that a national in petitioner's category expatriates himself when he remains for six months or longer in a foreign state of which he or either of his parents shall have been a national.” (Kawakita was found to have retained his US citizen through Section 401 of the Nationality Act) Anyway, this leaves the status of Walker's citizenship, perhaps, hinging on his location during the seven months of his disappearance from Northern Pakistan, until the time of his reappearance after the prison uprising in Northern Afghanistan. Unfortunately, Walker's citizenship cannot be established by Section 401 of the Nationality Act since it has been repealed, and I am unsure of the present status of Section 402.
So, Garrett, I stand corrected on the precedent, which pretty much invalidates my dismissal of citizenship argument. Therefore, in my mind, the question of citizenship is still open for debate in a trial on treason charges. The gov't must prove citizenship, an overt act against the US as witnessed by two people, and an intent to betray his country by means of that act, (Cramer v. U.S., 1947). Sounds pretty tough, considering they can still face the ‘Brainwashing defense'. Maybe, the executive will settle for the ‘easier' route of a war crimes trial before a military court.
Sans the citizenship issue, which is unclear.
Treason may also be proven by a confession by the individual. Walker has clearly admitted to being a willing member of the Taliban military. Since the Taliban military is a hositle force against US interests, this act qualifies a citizen for treason charges. The least he is looking at for treason is 10 years in Club-Fed. All of this is dependant on the status of his citizenship.
|
|
|
|
Valiant Dancer
Forum Goalie
USA
4826 Posts |
Posted - 12/18/2001 : 10:49:40 [Permalink]
|
quote:
Tim, this is extremely interesting, particularly this point:
quote:
If, in fact, Walker has made a public renunciation of his US citizenship, this could actually work into the hands of the prosecution in an attempt to establish hostile intent.
But I question the precedent for trial of non-citizens for treason. (It's an honest question; I would assume you are wrong, but I simply do not know.) Can you point to some references.
I have to fall back on my early admission of not being a legal expert in this arena.
My kids still love me.
I was able to find this about the renunciation of US citizenship.
http://travel.state.gov/renunciation.html
There is no information from the powers that be that this occurred. It's something that will have to be proven. If Walker missed this step, he's a traitor.
|
|
|
|
Trish
SFN Addict
USA
2102 Posts |
Posted - 12/18/2001 : 11:46:52 [Permalink]
|
quote:
A person wishing to renounce his or her U.S. citizenship must voluntarily and with intent to relinquish U.S. citizenship:
1. appear in person before a U.S. consular or diplomatic officer,
2. in a foreign country (normally at a U.S. Embassy or Consulate); and
3. sign an oath of renunciation
Renunciations that do not meet the conditions described above have no legal effect. Because of the provisions of section 349(a)(5), Americans cannot effectively renounce their citizenship by mail, through an agent, or while in the United States. In fact, U.S. courts have held certain attempts to renounce U.S. citizenship to be ineffective on a variety of grounds, as discussed below.
I was somehow thinking this was the case. If Walker failed to do this he is still a citizen. However, I think an issue that was raised was whether the confession of working with the Taliban was admissible in court since Mr Walker was not advised of his rights under Miranda. Yet, Garrette pointed out that the US Military in no way should be considered a Law Enforcement Agency - which would negate that argument. The other arguments were whether Walker knew that the Taliban would take action against the US. I think that can be proven - by reading every fatwa ever issued by bin Laden. I somehow think that in and of itself is enough to show that Walker should at least have been familiar with the concept of killing the great satan US. So did he knowingly act against US troops? Does it matter? He fought with a regime the US has never recognized, understood and participated with an organization that wants to destroy the US (fatwas should show this) and was caught on foreign soil. Hmm, I can't help but think that he knew what he was doing. His intentions - when he left the US - were pretty clear I think. He changed to Islam, ingratiated himself with some of the most radical Islamists (ok - the one who really follow their book - but that's apparently not pc to point that out - so I won't) and went to a foreign country to join in their struggle to oppress a society. He knew what he was doing - I can't see that he could not.
It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence never to practice either of them. -Mark Twain |
|
|
|
Tim
SFN Regular
USA
775 Posts |
Posted - 12/20/2001 : 05:44:08 [Permalink]
|
I think, still, that this case would not have made an easily provable case for treason, especially considering the fact that we, as Americans, hold the right to dissent as one of our most closely guarded ideals. The question remains, did Walker, at any time perform an overt act with the express intent to directly harm the US? Were there two witnesses to this, or a confession? No sympathy for Walker here, but I've heard of no such thing. Again, showing allegiance for an entity that we do not approve of does not necessarily mean a diminished allegiance for something we do approve of.
Besides, on my way home from work, at 4:00am, I heard on the radio that the administration decided not to pursue treason charges. Reason; too hard to prove. They decided on lesser charges of aiding terrorists or some such. Then, I heard an Ashcroft sound bite. I sometimes feel that I have the world's worst memory, but I thought I heard him call Walker a “collaborator” in a terrorist act of an extremely high magnitude. I immediately thought WTC and Pentagon. Am I missing something? Is Walker supposed to have somehow been a participant in the events of 9/11, or did he have prior knowledge, or some remarkable knowledge since these crimes? Or, is this an attempt of Mr. Ashcroft to try this case in a court of public opinion? Or, have I lost my mind?
Sorry, but forget Walker. I just get a little pissed when politicians make comments like this. The man has a right to express his opinion, but as a public official he, also, has a duty to act responsibly. It is far too easy for someone of Mr. Ashcroft's status to use public opinion to force political decisions in the courtroom, and to taint jury pools.
Sorry, I will rant no more, and wish you all the happiest of holidays, as we pack our bags and head south until the New Year. Enjoy.
|
|
|
|
Valiant Dancer
Forum Goalie
USA
4826 Posts |
Posted - 12/20/2001 : 07:23:27 [Permalink]
|
quote:
I think, still, that this case would not have made an easily provable case for treason, especially considering the fact that we, as Americans, hold the right to dissent as one of our most closely guarded ideals. The question remains, did Walker, at any time perform an overt act with the express intent to directly harm the US? Were there two witnesses to this, or a confession? No sympathy for Walker here, but I've heard of no such thing. Again, showing allegiance for an entity that we do not approve of does not necessarily mean a diminished allegiance for something we do approve of.
Besides, on my way home from work, at 4:00am, I heard on the radio that the administration decided not to pursue treason charges. Reason; too hard to prove. They decided on lesser charges of aiding terrorists or some such. Then, I heard an Ashcroft sound bite. I sometimes feel that I have the world's worst memory, but I thought I heard him call Walker a “collaborator” in a terrorist act of an extremely high magnitude. I immediately thought WTC and Pentagon. Am I missing something? Is Walker supposed to have somehow been a participant in the events of 9/11, or did he have prior knowledge, or some remarkable knowledge since these crimes? Or, is this an attempt of Mr. Ashcroft to try this case in a court of public opinion? Or, have I lost my mind?
Sorry, but forget Walker. I just get a little pissed when politicians make comments like this. The man has a right to express his opinion, but as a public official he, also, has a duty to act responsibly. It is far too easy for someone of Mr. Ashcroft's status to use public opinion to force political decisions in the courtroom, and to taint jury pools.
Sorry, I will rant no more, and wish you all the happiest of holidays, as we pack our bags and head south until the New Year. Enjoy.
Ashcroft didn't want him for treason. The bullshit reason he gave was so that he could justify using the new "Patriot Act" so that he could imbed into the legal system with case law. With successful tried cases under the "Patriot Act", it makes it a lot harder to overturn. He could have easily gotten a treason conviction.
|
|
|
 |
|
|
|
Topic Locked
