By Mark K. Moller
During this annual assessment, deals a well timed research from a classical Madisonian viewpoint, of an important situations from the preferrred Court's 2003-2004 time period. Cato's is the 1st in-depth evaluation to seem after the Court's time period ends.
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No access had to be granted to family members and no access had to be granted to a lawyer. According to President Bush, it did not matter if the prisoner was an American citizen, and it did not matter if the person was seized on a battlefield overseas or off the streets of an American 1 2 3 124 S. Ct. 2633 (2004). 124 S. Ct. 2711 (2004). 124 S. Ct. 2686 (2004). 23 CATO SUPREME COURT REVIEW city. So long as the president designated the prisoner as an ‘‘enemy combatant,’’ the secretary of defense could treat the prisoner as if he essentially had no legal rights.
First, the attempt to distinguish Milligan is unconvincing. The charges that were leveled against Milligan were quite serious. S. military. The Supreme Court did not elaborate on the nature of the charges against Milligan because it held that the accused would get a jury trial regardless. It was disingenuous of the Quirin Court to distinguish Milligan on the ground that the Milligan Court 74 See Louis Fisher, Nazi Saboteurs on Trial 46 (2003). S. at 36–38, 48. 76 Id. at 45. 44 Power and Liberty in Wartime had not been confronted with crimes that were subject to the laws of war.
The Court’s reasoning in Quirin is defective because it is circular: The government informs the prisoner that he is not entitled to a trial by jury because he is an unlawful combatant. The prisoner denies the charge and demands his constitutional rights so that he can establish his innocence. The government responds by diverting the case to a military tribunal because the charges subject the accused to the laws of war. A subsequent conviction by the tribunal supposedly confirms the fact that the case was properly diverted outside of the civilian court system in the first place.