Eric The Hun, Esq.
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Of course, Walker has a defense, as mentioned above. For the government to concede that Walker remains a citizen, however, without even raising the issue in court, concedes too much. The man is a traitor who took up arms against Americans. If Walker wanted to mount a legal fight to retain his citizenship, and explain to a court and the public why he never intended to relinquish it, that would be a fight worth having and an argument worth hearing.
The government's decision to avoid this confrontation cannot be explained persuasively on legal grounds. It is, however, perfectly in line with the government's weakening resolve to use military commissions, so that if Walker is said to be a U.S. citizen, he's not subject to justice dispensed by military commission.
As for the argument by Mr. Keyes that the Constitution's separation-of-powers doctrine should preclude generally the use of military commissions, in this there can be no doubt. However, while the Constitution creates three separate branches of government, Article I, Section 8 empowers Congress "To constitute tribunals inferior to the Supreme Court."
It is under this constitutional authority that Congress crafted the Uniform Code of Military Justice, which is not part of the usual civilian-court system. Presidents have used the statutory authority set forth by Congress as the basis for establishing military commissions. If Congress concludes that the president has abused or misused this authority, it has the power to change the law. Thus far, it has not.
Article I, Section 8 also empowers Congress "To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." For purposes of interpreting the Constitution, it is perfectly legitimate to equate yesterday's pirates with today's foreign terrorists.
Military commissions have been upheld as constitutional by earlier Supreme Courts. And despite the president's military order, which does not provide for judicial review by the Supreme Court of decisions made by his military commissions, there is no doubt that the Supreme Court retains the authority to review decisions by these inferior courts.
This should satisfy any questions which you may have regarding the legality of President Bush proceeding against either Mr. Walker or the remaining Taliban and/or Al Quaeda members that it presently has in custody abroad.
Thanking you for your kind attention to this matter, I remain
etc, etc.
Mr. Levin was kind enough to post his letter at: [url]
http://www.nationalreview.com/contributors/levin012302.shtml[/url]
Eric The(LegalBeagle)Hun[>]:)]