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» The Ornery American Forum » General Comments » Who decides who is an enemy combatant? (Page 2)

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Author Topic: Who decides who is an enemy combatant?
Tom Curtis
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In the Detainee's Treatment Act of 2005, it is stated that, "The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien--

(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and

(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.[/quote]

The Military Commissions Act bans any court from hearing any case regarding a detaineed except as specified in two sections of the Detainee Treatment Act, but that is one of the sections.

I only mentioned apeals on behalf of a detainee, in that a detainee can be held incommunicado which pretty much precludes the detainee themselves filing suite. Of course, if we don't know of the existance of a specific detainee, we can't file suites on his behalf either.

In principle, CSRT are open in that they may be attended when not discussing classified information, by journalists who have been given prior approval by the DOD. IOW, of a journalist just rocks up from the times, they can't get automatically get access to the procedings even when non-classified information is discussed. But in theory, so long of the name of the detainee themselves is not classified, this means all detainees should be known to be detained withing six months of capture.

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naomi
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Hi I am from Australia, We have now, new, Anti-Terrorism Laws, Ours are just as bad as yours but... Australia doesn't have a Bill of Rights, so we are even more up '**** creek without a paddle' than you.
Our Detention and Control Orders can be applied without limitations. If you are accused of a crime you can be incarcerated indefinatly - even if you havent been found guilty - and you have very limited access to a lawyer. Keep in mind our Prime Minster John Howard is very good friends with your President Bush.

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hobsen
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Welcome, Naomi. Sorry to hear Australia got dragged along in the general madness.
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Tom Curtis
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Australia's anti terrorism laws are fairly equivalent to the Patriot Act, or the equivalent equivalent laws in the UK. It is not true that detention orders or control orders can be applied without limitation.

For a control order (which at worst amounts to house arrest) to be applied, an officer of the Australian Federal Police must seek approval of the Attorney General. If granted that approval, they must apply to a Federal Court for a control order. They must provide the Attorney General and the Federal court:

quote:

(a) a draft of the control order to be requested;
(b) a statement of the facts and other grounds on which the member considers it
necessary that the order should be made;
(c) an explanation as to why each of the obligations, prohibitions and restrictions to be
imposed on the person by the order is necessary;
(d) a statement of the particulars and outcomes of all previous requests for control
orders and preventative detention orders in relation to the person.

The Federal Court may also question the AFP officer on the matter. Control orders cannot apply for more than one year, but can be applied consecutively (ie, they must be reviewed at least annually).

A control order may include the following elements:

quote:
(3) The obligations, prohibitions and restrictions that the Court may impose on the
person by the control order are the following:
(a) a prohibition or restriction on the person 1 being at specified areas or places;
(b) a prohibition or restriction on the person leaving Australia;
(c) a requirement that the person remain at specified premises between specified times
each day, or on specified days;
(d) a requirement that the person wear a tracking device;
(e) a prohibition or restriction on the person communicating or associating with
specified individuals;
(f) a prohibition or restriction on the person accessing or using specified forms of
telecommunication or other technology (including the Internet);
(g) a prohibition or restriction on the person possessing or using specified articles or
substances;
(h) a prohibition or restriction on the person carrying out specified activities (including
in respect of his or her work or occupation);
(i) a requirement that the person report to specified persons at specified times and
places;
(j) a requirement that the person allow himself or herself to be photographed;
(k) a requirement that the person allow his or her fingerprints to be taken;
(l) if the person consents—a requirement that the person participate in specified
counselling or education.

A person subject to a control order may appeal to the Federal Court to have it revoked.

Detention orders must be made by a Judge of Magistrate. They can only be made for 48 hours, initially, but can be renewed for 24 hour periods by new applications to the judge or magistrate.

I do have concerns about both of these, but they do not represent the sort of abuse of civil rights faced by "Illegal Enemy Combatants" in the US.

http://en.wikipedia.org/wiki/Australian_Anti-Terrorism_Bill_2005

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Jesse
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Uh, these are almost exactly the measures I've suggested on this board more than once [Smile]

Not something to cheer about...but a system we could live with.

Pretty far cry from what just went down here.

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Tom Curtis
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As I said, I have concerns with it. Primary amongst these with regard to control orders is that the "statement of the facts" are not tested in court. The judge must more or less accept the facts as are as the AFP officer says they are, and only gets to determine that, if that is indeed the case, what level of contol is appropriate. Seeing these are orders for up to one years of duration before review, I think the potentially controlled person should be able to challenge the claimed facts in court.

With regard to the detention order, I am more concerned that it is illegal to let anyone know that somebody has been subject to a detention order. That may be necessary in order to not alert other terrorists, or to foil particular threats, but it is an extaordinary provision with much potential for abuse. Any such provision should be subject to very strict retrospective review to prevent abuse, and the Australian Law does not allow for sufficient review, IMO.

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