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View Diary: Many questions for John Brennan today and only a few hours to ask them (100 comments)

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  •  Juan Cole's Top 5 Objections to White House's (4+ / 0-)
    Recommended by:
    allenjo, mimi, joe shikspack, joanneleon

    Drone Killing Memo".
    You comment made me think of THIS part of his list (all emphasis mine).

    http://www.juancole.com/...

    2. To any extent that the President’s powers under the memo are alleged to derive from the 2001 Congressional Authorization for the Use of Military Force, i.e. from the legislature, they are a form of  bill of attainder (the History Learning Site explains what that is here):

     “A bill, act or writ of attainder was a piece of legislation that declared a person or persons guilty of a crime. A bill of attainder allowed for the guilty party to be punished without a trial. A bill of attainder was part of English common law. Whereas Habeus Corpus guaranteed a fair trial by jury, a bill of attainder bypassed this. The word “attainder” meant tainted. A bill of attainder was mostly used for treason . . . and such a move suspended a person’s civil rights and guaranteed that the person would be found guilty of the crimes stated in the bill as long as the Royal Assent was gained. For serious crimes such as treason, the result was invariably execution.”

    What, you might ask, is wrong with that? Only that it is unconstitutional.  Tech Law Journal explains:

    “The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: “No Bill of Attainder or ex post facto Law will be passed.” . . .

    “These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment.” William H. Rehnquist, The Supreme Court, page 166.

    The form of the AUMF, in singling out all members of al-Qaeda wherever they are and regardless of nationality or of actual criminal action, as objects of legitimate lethal force, is that of a bill of attainder. Congress cannot declare war on small organizations– war is declared on states. Such a bill of attainder is inherently unconstitutional.

    without the ants the rainforest dies

    by aliasalias on Thu Feb 07, 2013 at 01:30:02 PM PST

    [ Parent ]

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