On the Issue of Comfort Women

On the Issue of Comfort Women

 Historian Yoshiaki YOSHIMI details the issue of “comfort women” (or 従軍慰安婦) in his article as a criticism against the conduct of the Japanese government and its officers during the stage of its so-called “imperialism” in East Asia. The following are the claims he makes against the Japanese government in his report:

1. The Japanese government authorized the use and employment of “comfort women” in the Japanese military during the war.
2. These “comfort women” were primarily recruited out of its imperial colonies, with a clear majority of them being Korean and Taiwanese.
3. Trafficking of women and children was a breach of International Law (International Arrangement and Conventions for the Suppression of Traffic in Women and Children) and the laws of war (rape was a committable war crime) to which Japan was a clear signatory of.
4. It was necessary for Japanese military to employ “comfort women” for the sake of sustaining the war.
5. The issue of “comfort women” was passively buried under wraps by the Japanese government after the war.

Prostitution is not an uncommon element to war, in fact one could even say that they go together hand in hand; there are many documented examples of history regarding government and/or military sanctioned-prostitution, with the Cavour Law of 1860 in Italy[1] after the Resurgence wars[2] being a notable example. Military prostitution, in fact, was not considered a war crime or a human rights violation prior to recent years (and developments in global human rights) and there have been many reports and accusations of military prostitution against the United States army in Korea, the Philippines, Okinawa, etc.

Setting the legality of military prostitution aside, the issue at stake for Japan has never been against the employment of prostitutes by the government, but rather of whether such actions taken by the Japanese government were consistent with the contemporary laws of war and international human rights regulations at the time. The biggest of the accused violations in contention is that the Japanese recruitment of “comfort women” constituted a form of slavery (as per 1926 Slavery Convention of the League of Nations) and/or forced labor (as per the Forced Labor Convention of the ILO). The Japanese government, given that the accusations against it listed in the article are all in bona fide, would also be guilty of trafficking women and children if the accounts of under-21 year old women in the army were to be believed.

Yoshimi however, is not overly disdainful on the general policy of military prostitution; Yoshimi clearly identifies that the Japanese government at the time clearly felt a need to provide “relief” to soldiers during the course of the their long “war of aggression” and even lauds the government’s systemization of the process in its “type two” comfort houses through which wide spread of venereal disease throughout the ranks were effectively put into check. Yoshimi also comments on the fact that the Japanese government saw the recruitment of “comfort nurses” from its then imperial colonies preferable over recruiting those from its forty-seven prefectures, since the government was not restricted to the recruitment of prostitutes in the then-colonies of Korea and Taiwan due to the exclusionary clause in the convention against trafficking women and children—recruiting women who weren’t prostitutes as “comfort women” into the military, at least in the minds of the Japanese government at the time, would serve as an efficient way of providing “relief” to its soldiers without “weakening their fighting spirit” through contracting sexually transmitted diseases.

Yoshimi concludes his report by stating that the Japanese government did issue a formal apology for its policies regarding “comfort women” during the war and acknowledged the fact that the war-government was indeed involved in recruiting, funding, and managing the “comfort women” effort, as detailed by Prime Minister Miyazawa during his 1992 visit to Korea. Prime Minister Murayama apologized again in 1995[3], but echoed Miyazawa’s statements, alleging that the government merely sanctioned and regulated the comfort houses and did not play an active role in their creation and proliferation. Most recently in 2007, a much-lauded attempt by Prime Minister Abe in apologizing for the human rights violation once again curtailed that the government did not intend or sanction the forceful recruitment of women as “comfort women”, and also correctly identified that the term i’anfu was not one officially coined during the war, but one popularized by the media and the press, most notoriously by one Senda Kakou in his book Ju’gun I’anfu published in 1973.

In conclusion, the case of the “comfort women” can be seen as yet another government-sanctioned mass-breach of international law/human rights processed under the guise of a euphemism; although it should be noted on a personal note that when compared to others which have adorned the halls of atrocities caused under the guise of euphemisms such as “ethnic cleansings” or torture of “illegal enemy combatants,” the sanctioning of “comfort women” doesn’t seem to be as unnatural or unforgivable as contemporary media and historians have made it out to be.

 

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[1] See Gibson, “Prostitution and the state in Italy, 1860-1915”, Ohio State University Press, 1999

[2] 1814 – 1861

[3] See Murayama’s statement given on the occasion of the 50^th anniversary of the war’s end

The Evolution of Habeas Corpus

Abstract
This research aims to validate the evolution of habeas corpus in the way it manifested in the common law tradition. This paper will document how habeas evolved from a simple summons to court to an extraordinary writ of liberty which allows a prisoner to be acquitted in the event of a wrongful committal; this paper also aims to justify the various ways in which the Great Writ has been used in American case law, specifically in regards to the subject of its suspension and its extraterritorial ambit.

The History of the Great Writ
Though Historians generally credit the birth of the Extraordinary Writ to the signing of the Magna Carta in 1215, the idea that a man should not be unreasonably detained and be tried before a panel of arbiters before being committed to gaol was a familiar thought that had already existed for many centuries prior to its existence. The most romanticized examples of these include the Athenian courts which arbitrated the trial of Socrates[1]; the Sumerian courts which closely followed the oft lauded Hammurabi codex; and the ecclesiastical courts of King Solomon[2] whose wisdom is admired by both scholars of law and religion alike. 

Setting ancient thoughts aside for later consideration, it is safe to say that the writ of habeas corpus was written into existence not through a single moment of Archimedean genius, but in recognizing that the rights provided by the writ do and should inherently exist in a just legal system; the writ of habeas (or at least the ideas sustaining it) evolved into life from a collective necessity and will of the people, much akin to the way biological organisms evolve to better adapt to their changing habitats. In order to better understand this evolution it is necessary to first examine the history and the background issues which necessitated it, which shall be my topic of discussion for the following paragraphs.

The events leading up to the Magna Carta perhaps served as an eerie historical precedent to the theme of Hobbes’ Leviathan; King John reigned over a war-torn England from the likes of his predecessor Richard I’s ventures into the holy land and his vendettas against France—which eventually ended up in French invasion of then-English Normandy—the papacy, and his barons.[3] On top of the circumstantial predicaments inherited by King John, his ruthlessness and disregard for traditional justice during his absolutist reign[4] stirred up anxiety and discontent in his subjects whose grievances against the king were addressed in a great charter of freedoms which came to be known as the Magna Carta.

The aim of the Magna Carta was to firmly redress the formerly established relationship between king and subject[5] where the king would not stand as the absolute Schmittian sovereign at all times, but rather be bound by law and legal procedures like any other subject under the crown.[6] The Magna Carta afforded all subjects under the crown with protection from unreasonable abuse of sovereign power and laid down the spiritual foundations for many civil libertarian ideals to come, but for the sake of our interest, we shall only concern ourselves with articles 38 through 40 of the Great Charter.

The three articles which make up the habeas portion of the Great Charter strike a remarkable resemblance to the Constitutional Bill of Rights—the 5^th and 7^th amendments in particular—in that they both emphasize the protection of a subject’s legal integrity in court. Article 38 of the Great Charter[7] states that:

 

“In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it,”

 

thereby protecting the accused of self-incrimination in court; Article 39 claims that:

 

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement [sic] of his equals or by the law of the land,”  

 

guarding subjects against arbitrary abuse of sovereign power in the process of justice and advocating trial by jury; and finally, Article 40 of the Great Charter guarantees one with a speedy trial under law by holding that

 

“To no one will we sell, to no one deny or delay right or justice.”

 
Thus the passage (and subsequent repeal and redrafting) of these three articles into common law echoed the age-old tradition as held by the courts of Athens, Hammurabi, and Solomon by confirming the inherent necessity for the right of the accused to be able to defend themselves in court without unreasonable interference from the sovereign. The Great Writ was therefore evolved in this first stage from being merely a collective necessity and will, to that of written law.

Though many, as aforementioned, credit the Magna Carta with the introduction of the Great Writ to common law, the Magna Carta in reality only served as the spiritual foundation of the writ. The Great Charter itself was not formally accepted into English law until ten years after King John’s ratification of the charter at Runnymede.[8] As an effect, the formal application of the writ was seen to be in ambiguous grounds prior to the establishment of the common law courts[9] (which was also in part, established by the Great Charter.[10])

The idea of habeas corpus cum causa or appropriately translated “having the body with cause” was a familiar concept in civil procedure which most likely predated articles 38-40 of the Magna Carta.[11] Habeas corpus in its early form was but a simple command which ordered to have the defendant to an action brought physically before the court.[12] It is noted that this early form of habeas was based loosely on the authority of three pre-existing medieval writs[13]: the writ de homine replegiando (“personal replevy”), which (by medieval application only) was the actual order which was issued in bailing a person out of prison; the writ of mainprize, which was issued to sheriffs or corresponding authorities to secure a person’s appearance in court; and finally the writ de odio et atia (“from hatred and ill will”), which was a command issued to the sheriff to inquire whether a prisoner committed under charges of homicide was done so with justified causes or “from hatred and ill will.”

Given such precedents, early habeas at face value did not embrace the idea of producing the body with the cause of his detention, and records of early application show that the purpose of the process—which usually took place prior to actual detention—was to order an officer to bring in the defendant, regardless to the cause of detention.[14] Habeas in its early form, therefore, was not a ‘remedy of general application’ as it is seen now, but a special procedure used under special circumstances. Due to the fact that the three medieval writs previously mentioned could not be applied in matters concerning the crown, and the proposed writ of habeas of the day was merely akin to a summation of those three writs, (with the added factor of bringing the cause and matter of imprisonment before the court) habeas corpus was still ineffective in safeguarding the individual from arbitrary detention and arrest.

The application of habeas did evolve further in the fourteenth and fifteenth century with the King’s Bench’s efforts of centralizing the courts, where the writ was directed by the central courts against the local inferior courts’ jurisdiction so to “channel the litigation” toward the centralized administration[15]. The central court achieved this by exercising the habeas-given authority to summon the accused to the court of law against the inferior courts, thereby poaching the defendant from the inferior court under the claims that the defendant could show some sort of special connection or merit of having his case heard there. From this battle of the courts was inadvertently born the idea of associating habeas corpus with requiring the cause to be shown for the imprisonment or detention of a person, as well as testing the capacity of the tribunal which had ordered the detention of the defendant.[16]

By the late sixteenth and the early seventeenth century however, the core function of habeas changed from executive procurement and/or detention of subjects to that of challenging executive commitments[17]. Such examples were found in Searche’s Case[18], where the Queen’s Bench was forced to discharge a prisoner who was detained under a criminal charge that the Queen had designated as a surety to receive protection from arrest; and in Howel’s Case,[19] where a prisoner’s release was demanded to the Queen’s Bench under claims that there was insufficient cause for arrest and detainment. In response to the inferior courts’ passive insubordination to the Crown Courts was passed the Resolution of 1592, which gave an ambiguous response to the situation by stating on one hand that:

 

“[P]ersons [charged with high treason] before committed may not be delivered by any of her Courts without due trial [sic] by law, and Judgement of acquittal, had,”

 

while maintaining that the sovereign maintains the right of discretion in the detaining and committal of persons by advocating that:

 

“[T]he Judges may award the Queen’s Writs [of habeas] to bring the bodies of [those committed with high treason] before then, and if upon return thereof the causes of their commitment be certified to the Judges as it ought to be, then the Judges in the cases before ought not to deliver hum, but to remand the prisoner to the place from whence he came.”

 
The sovereign abuse of the writ of habeas, and judicial reluctance to stand up against the crown finally made it clear that the power to commit prisoners by the state was clearly being abused, and that eventually came around to becoming the biggest issue to be settled on the question of habeas corpus. No single act has been celebrated more in the history of common law after the Magna Carta than that of The Five Knights’ Case[20] which resulted in the drafting of the Petition of Right, which established the principle that the sovereign could not imprison under the authority of per special mandatum domine regis (“under special command of the King”) without showing cause.

The Five Knights’ Case was submitted to the Kings Bench for habeas review by Sir Thomas Darnel along with four other knights, who were arrested by the order of the King for their refusal to comply with a forced loan order issued by King Charles I, who through the forced loans schemed to raise revenue without Parliamentary sanction. The five knights challenged their detention on the grounds that the forced loans order did not have Parliamentary sanction and was therefore, illegitimate, and also under Article 39 of the Magna Carta which states that no free man is to be imprisoned except by the lawful judgment of his equals, or by the law of the land. 

The Court however, refused to bail the prisoners, relying on the Resolution of 1592 and the ambiguity in the meaning of the phrase “law of the land” as written in the Magna Carta as a justification of such a verdict. Chief Justice Hyde stated that “if a man be committed by the commandment of the king, he is not to be delivered by a habeas corpus in this court.”[21] The judges also recognized that a prisoner could not be delivered on habeas corpus without having been tried, and that he could only be tried if the cause were expressed,[22] thus opening doors for further discussion of the verdict by Parliament.

Subsequent with the Five Knights’ verdict came the passage of the Petition of Rights, which was drafted in hopes to redress the issues of arbitrary taxation, forced loans, arbitrary imprisonment, and most importantly, that of the habeas question as raised by the Five Knight’s Case:

 

“[Y]our subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your Majesty’s writs of habeas corpus… no cause was certified, but that they were detained by your Majesty’s special command… without being charged with anything to which they might make answer according to the law.[23]”

 
Although the Petition by its own right restored the normative process of the writ, and in the words of Lord Coke “claimed rights implicitly conferred by the ancient laws, not so much as enact new ones,” the fact that it was in nature a “petition” as opposed to being a “statute” or a “law” made its application difficult and sovereign compliance to it a near-impossible feat. Although Charles I initially agreed to the terms of the Petition, quoting it to be a “confirmation of the ancient liberties and rights of the subjects,”[24] his nonchalant attitude toward the Petition was soon made clear. The king, in further efforts to finance his efforts during the English Civil War imposed the ship money tax, a tax which could only be enacted during wartime, contrary to Clauses I and II of the Petition of Right which spoke out against arbitrary taxation. The integrity of the Petition lay further in shambles as Charles further committed prisoners without making returns to the writ of habeas, as was the case in Freeman’s Case.[25]

Little solace was to be had with the passing of the Habeas Corpus Act 1640—which abolished the arbitrary concilliar courts that were set up by Charles I[26] and provided that anyone imprisoned by the King or Council should have his habeas corpus and be brought before the court without delay[27]—as Charles I was executed and replaced by Oliver Cromwell, during whose time as Lord Protector a strict judicial deference was observed regarding the subject of Habeas Corpus.

But relief would come at last after Cromwell’s death and the ascension of Charles II to the throne as the Parliament, in its long-awaited reconvention, passed the Habeas Corpus Act of 1679, which established a place for the writ in the constitution, and in the popular conception as a fundamental guarantee of liberty.[28] The main issues that the Act of 1679 dealt with were concerning the loopholes within the serving of the writ, those especially to do with detention and bailing (or the lack thereof) of prisoners:

 

“[I]f any person or persons, subjects of this realm, shall be committed to any prison or in custody of any officer or officers whatsoever, for any criminal or supposed criminal matter, the said person shall not be removed from the said prison and custody… unless it be by habeas corpus or some other legal writ,”[29]

in light of a practice held up during the time of the protectorate where prisoners committed by the executive would be moved from one prison to another or even to a prison outside the jurisdiction of the crown to avoid releasing the prisoner.

The Act also made available the issuance of the writ in any court of law at any time[30]; made illegal the illegal imprisonment of prisoners beyond the seas and outside the realm of the Crown[31]; and also outlawed double jeopardy.[32] The Habeas Act of 1679 therefore restored the normative order of the writ of habeas as it existed prior to the Resolution of 1592 and permanently established the principle that the efficacy of habeas corpus as a part of due process should not be thwarted[33].

And thus the writ of Habeas Corpus was melded and evolved into its recognized form today.

Modern Applications of the Great Writ: Executive Suspension
The idea that absolute sovereign power be vested unto one individual who is best equipped to lead a state out of crisis in times of emergency is not an unfamiliar concept to the political history of any state. Since the time of the Roman dictatorship, normative public order has been suspended on the basis of its right to self-preservation—perhaps as proof that it is indeed superior over the validity of the legal norm as Carl Schmitt contends[34]—as a way of sparing the state from becoming a victim in the bellum omnium contra omnes that tends to accompany the hysteria of a state of emergency.

With regards to the Great Writ, the idea that it could be ‘suspended’ and its privilege taken away from the general public during a time of emergency was never a fading thought throughout the history of its formation. Recall back to the events surrounding the Magna Carta where King John anachronically suspended the writ of habeas during his travails against France and the papacy; or back to those surrounding the Petition of Right, where Charles I also inadvertently suspended the writ to force those who wouldn’t pay taxes (albeit illegal) into submission. The bottom line here is that the idea that normative due process could be suspended by the executive during times of perceived need had existed even prior to the formation of habeas, and the fact that the extraordinary writ encompasses everything that needs to take place for normative due process to take place, it has if nothing else, made it easier for the executive to supersede the laws of the state.

The two main issues that cannot be left out in discussing the suspension of habeas corpus are that of liberty and exigency. The idea of liberty comes into play from the classical debate of whether liberty should be sacrificed for the sake of security, (or in the curious case of Benjamin Franklin, whether having such considerations merit having either of those things) or whether personal liberty is something that should be preserved at all costs. The case of exigency is contingent on that of liberty, chiefly in the manner of deciding what the special considerations that come into play in the event that liberty should be sacrificed for the sake of security, and how those specific considerations will affect the running of the courts.

The most important legal consideration which came into play during the formation of the Great Writ was that of the on-and-again off-again power of the Crown to commit a subject without formally charging with a viable crime. In the previously mentioned case of the Five Knights, the courts held that no justification was needed other than the King’s “special command” for committal despite heavy dissent from Parliament. By affirming that the King’s “special command” was circumstantially enough to commit a possibly innocent subject into gaol, the Courts thus ascertained that the King had a right to control discretion[35], or more broadly put, the King and the King alone had the power to decide the merits of the case.

The King‘s victory was short-lived, as passage of the Petition of Right abolished the executive’s power to detain as held in the Five Knight’s Case. Through the extension of admitting that the writ of habeas corpus should remain in effect at all times, the executive was also deprived of all discretionary powers in ordering the arrest, leaving only the will of the Parliament capable in exercising emergency powers in the face of crisis.

Unlike the case of the United States Constitution, where the power to suspend the writ of habeas under bona fides is implicitly reserved to the executive and the legislative branches through in its 1^st and 2^nd articles, “suspending” the writ of habeas in the American sense was quite a tricky feat to accomplish, nonetheless one which required some form of Parliamentary sanction.

The first method employed by Parliament of suspending the Great Writ in response to grave public danger was witnessed with the Habeas Corpus Suspension Acts of 1745, 1746, and 1747, in the face of impending Civil War. Unlike the traditional sense of “suspension” however, the suspension acts neither delayed nor halted the process of the habeas writ, but simply claimed that those arrested for or under suspicion of high treason could not be bailed or tried unless by the order of the executive council for a period of one year. The “suspension” in statutory form did not suspend the actual write, but prevented the issuance of a writ discharging a person detained under said charges and/or suspicions of high treason.[36]   

The dawn of the nineteenth and the twentieth centuries saw the fall of imperial rule and the rise of nation-states and with it, a world in war. The threat of total war necessitated more extreme measures to meet and preserve the state from crisis, and with such necessity, the Great Writ evolved once again. The significant aspect of the twentieth century habeas is found in the proverbial phrase inter arma enim silent leges; Parliament for the first time delegated the executive powers which enabled it to define the limits of its own powers.

The very first enactment which reflected this shift of power was the Defense of the Realm Act of 1914, which delegated to the executive in council “power… to issue regulations for securing the public safety and the defense of the realm.”[37] Although the act itself made no specific reference to internment, the executive was given the power to intern those deemed a threat against the “public safety or the defence [sic] of the Realm” through the powers newly delegated to the executive.

The sudden gain of executive discretionary power was appealed in front of the House of Lords in the case of R. v. Halliday,[38] where Arthur Zadig, a naturalized British citizen of German descent, appealed his internment after being detained under suspicion of being of hostile origins and associations. The defendant argued his case on the grounds that the power to intern was not explicitly specified under the Defense of the Realm Act, thus rendering the internment scheme ultra vires and ultimately making his internment illegal.

The House of Lords responded by claiming that the Defense of the Realm Act intended to empower the executive “for paramount objects of State, to invade by legislative enactment that liberty in certain states of fact.”[39] The House of Lords thus maintained that internment had been adopted for the purpose of providing for the safety of the realm, and the powers in the Defense of the Realm Act had not been superseded.

In a daunting statement which clearly displays the extent judicial deference in the face of exigent crisis, Lord Atkinson gave the following statement in his concurrence to the decision:

“However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement.”[40]

Modern Applications of the Great Writ: The Extraterritorial Ambit of Habeas Corpus

(a)   The Case of the Commonwealth

Although no questions need to be raised in the applicability of the Great Writ within the territories under sovereign

jurisdiction to the sovereign state issuing the writ, special considerations must be made in determining whether the writ

actually has an extraterritorial ambit, that is, whether the writ of habeas corpus can actually reach outside the dominion of

the sovereign.

In the early stages of habeas’ evolution there was little need for writ to actually extend outside the British Isles, as the territorial boundaries of England did not extend far beyond that of Scotland and Ireland. This was greatly changed in the late 17^th and early 18^th centuries, however, as the Commonwealth was established and the United Kingdom grew to become the biggest imperial power in the world, with its territories extending from the American colonies to the entire continent of Australia.

Whereas sufficient reason and necessity for an extraterritorial habeas was now found, actually awarding the Great Writ with an extraterritorial ambit would require much effort, especially since common law does not “recognize the effectiveness of judicial process outside the territorial jurisdiction of the court.”[41] Although this renders issuing the writ to a foreign country all but impossible, the fact that the writ does not depend on the jurisdiction of the court but upon the authority of the sovereign over his subjects, this does in effect allow for the writ to be issued to those extraterritorial areas which are subject to the dominion of the Crown.

The Habeas Corpus Acts of 1679 and 1816 both certify this claim in that the writ of habeas can be issued outside the immediate territory of England so long as the territory in question is within the dominion of the Crown. Article XI of the 1679 Acts states that:

 

“[H]abeas corpus according to the true intent and meaning of this act, may be directed and run into any county palatine, the cinque-ports, or other privileged places within the kingdom of England, dominion of Wales, or town of Berwick upon Tweed, and the islands of Jersey or Guernsey; any law or usage to the contrary notwithstanding.”

 

while Article V of the Act of 1816 extends this extraterritorial reach to the Isle of Man.

            
Following the embarrassing happenings of Ex parte Anderson—where the Queen’s Bench issued a habeas writ to a prisoner in Upper Canada only to discover that the Upper Canada Court of Common Pleas had already liberated Anderson by the time the writ had arrived—Parliament passed the Habeas Corpus Act of 1862 which both repealed the extraterritorial provisions as provided by the Acts of 1679 and 1816, while once again reaffirming the extraterritorial ambit of the Great writ:

“No writ of habeas corpus shall issue out of England, by authority of any judge or justice therein, into any colony or foreign dominion of the Crown where Her Majesty has a lawfully established court or courts of justice having authority to grant and issue the said writ, and to ensure the due execution thereof throughout such colony or dominion.”

 

whereas the writ explicitly states that those colonies or foreign dominions of the Crown with lawfully established courts capable of issuing and executing the writ of habeas are not within the bounds of the Queen’s Bench, it gives no mention to those dominions of the Crown incapable of issuing and executing the writ.

            
In light of the potentially troublesome loopholes the Act could ascertain, the scope of the Act has since been limited in two ways. The judicial decision in Ex parte Brown[42] ruled that phrase ‘foreign dominion’ as found in the Act of 1862 does not include those territories “brought within the realm by virtue of feudal subjection rather than overseas conquest or cession”; the decision in Ex parte Sekgome[43] further added that word ‘dominion’ includes only “territorial dominions,” disregarding protectorates or areas in which the Crown “exercises dominion only in the sense of control and power.” The Sekgome decision also maintained that the issuance of the English writ of habeas will not be precluded in those areas where the local law “temporarily does not permit the exercise of habeas corpus jurisdiction,” thus further confirming the possibility of the writ to run beyond the immediate territory of the Crown courts.

            
The most recent amendment to the Act of 1862 was established in the case of Ex parte Mwenya[44] which through the extension of permitting the issuance of the writ to Southern Rhodesia, enabled the writ to run to protectorates of the Crown. The argument for and against this matter were certainly not unheard of, especially since the Act of 1862 had previously allowed for the writ to run to the protectorate. The court was therefore, forced to make a decision outside of the realm of territorial classification and instead provide an apology on the grounds of sovereignty, to which it supplied the explanation that:

 

“where the nature of control is indistinguishable in effect from that exercised in a colony or in a territory acquired by conquest, the absence of a formal assumption of sovereignty does not preclude the exercise of the prerogative upon which the writ of habeas corpus depends,[45]”

 

thereby concluding that territorial labels (such as “protectorate” in this case) do not, by themselves define the extent of control exercised in the area. One final provision of the verdict was that the applicant of the writ in such an area need not be a British subject, as the theory guarding the running of habeas corpus outside of England is due to the sovereign’s right to inquire into the legality of a restraint over the subject.[46] The court finally ruled that where formal sovereignty is not required, there should be no difficulties where subjection to the Crown is carried out de facto as opposed to de jure

(b)   The Case of Guantanamo, Cuba

The case of issuing the Great writ to detained “enemy combatants” at the U.S. naval base of Guantanamo in the

sovereign state of Cuba was tricky for a few reasons.

First and foremost was the issue of territoriality. Guantanamo Bay was considered an irregularity in terms of all the

territories governed or placed under American jurisdiction due to the fact that the status of forces agreement for the

region was unclear: according to the 1903 Land Lease Agreement, the United States recognized “the continuance of the

ultimate sovereignty of the Republic of Cuba” over the area but maintained that it would “exercise complete

jurisdiction,”[47] whereas the decision reached in the Supreme Court case of Ahrens v. Clark and through that

extension, U.S. statutory law[48], stated that the writs of habeas corpus could only be issued by the courts to subjects

“within their respective jurisdictions.”

 

Second came the issue of subjecthood. The prisoners detained at the Guantanamo Naval Base were considered

“enemy combatants,” a new category of prisoners which categorized them as neither citizens of the United States nor

prisoners of war covered under international law. Although the U.S. statutory law was clear in that nonresidential aliens,

captured and detained abroad, are not entitled to the writ of habeas corpus in a court of the United States,[49] this

ambiguous labeling of detained persons was also accompanied by the ambiguous nature of the war: technically, a “war

on terror” could have an indefinite application, spanning out to indefinite subjects in an indefinite amount of time.

 

The final consideration which made the issuance of the writ difficult was the historical scope of executive discretion which

was afforded to the American executive during a state of perceived emergency. Unlike their English counterparts,

American executives enjoyed plenary powers of discretion during wartime mostly in bona fides, with the legislative arm

usually ratifying their actions ex post facto. Given the overwhelmingly favorable record that the executive had set for

itself in the matters of habeas corpus v. executive power during a state of emergency, it was unlikely for the Great writ

trump the powers of the executive.

 

As bleak as its chances looked, a remedy for the lack of habeas corpus was eventually found through the two landmark

cases of Hamdi v. Rumsfeld[50] and Boumediene v. Bush.[51] Although Hamdi did not address all the issues

concerning the “enemy combatant” listed above, it paved the way in guaranteeing that such provisions would soon be

given consideration due to the fact that Hamdi addressed the issue that no citizen should anytime be “imprisoned or

otherwise detained by the United States except pursuant to an Act of Congress”[52] and as an effect established a

statutory basis for the issuance of habeas in what was considered extraterritorial lands, thus for the first time confirming

the extraterritorial ambit of the writ.

 

Whereas the question of territoriality was resolved through Hamdi, the issue of subjecthood was a matter of repeated

discussion in the subsequent case of Hamdan v. Rumsfeld. The issue presented in the case of Hamdan v. Rumsfeld

was the legality of the military tribunals which were setup to exercise executive discretion in handling the detainees at the

aftermath of the Hamdi decision. The Hamdan verdict ruled that “absent express statutory provision to the contrary,

information used to convict a person of a crime must be disclosed to him,”[53] thus claiming that the executive does not

reserve the right suspend due process for the cause of arbitrary detention of persons during a time of war.

 

The last issue to be resolved was that of subjecthood. The issue of subjecthood was seemingly one which could not be

deterred from the executive as stare decisis on the matter was very clear: the cases of Johnson v. Eisentrager and Ex

parte Quirin both argued that foreign nationals captured outside the sovereign territory of the United States could not be

tried in American territorial courts. As the factors regarding subjecthood in Boumediene v. Bush was figuratively

identical to that of Johnson v. Eisentrager, it was clear that a verdict could not be reached through directly addressing

the issue of subjecthood. The court did however, find a necessitating issue with regards to time, as they found that the

detainees at Guantanamo Bay, including defendant Boumediene, were interned without any due process or habeas relief

for an unreasonable duration of time. With regards to the issue of time, common law habeas states that “a person may

apply [for the writ] while in the custody of a constable, immediately upon being arrested, and need not wait until he is

incarcerated,”[54] thus bringing to light that something that is afforded instantly to a citizen should not be denied

indefinitely to a non-citizen solely under the virtue that he is not under the subjecthood of the sovereign.

 

Thus as seen in the case of Guantanamo, the Great Writ was able to rise to the occasion and further evolve once again,

this time warranted by the necessity of time as a critical factor in determining the issuance of the writ; although it can be

pointed out that the verdicts reached in the cases of Ex parte Brown, Ex parte Sekgome, and Ex parte Mwenye

would have held sufficient grounds under the English law of habeas corpus[55] to run the writ to Guantanamo, the

extraordinary writ was able to evolve past such obstacles, and once again adorning itself as a core element in the due

process of law.

 

Conclusion

Thus given the travails and the journey of the Great Writ so far, it can be contended that the writ of habeas, like the

constitution, is a living, breathing law which is constantly changing and adapting to new ideals and necessities. Being born

from the most extraordinary circumstance, it is not surprising that it has evolved into a linguistically-obfuscated form of a

zoon politikon, which endows its petitioners with the most extraordinary liberties in times of necessity. The writ of

habeas corpus has evolved into the most important, if not the most discussed debate of due process, as due process has

come to depend so heavily on its functionality due to its ability to adapt and metamorphosize to better fit necessary

situations. Whether the Great Writ, for generations to come, will remain the champion and the defender against the

Leviathan that is the state cannot be determined, but it is certain that for as long as the Great Writ remains in effect

personal liberties and freedoms will be safeguarded from the arbitrary infringements by the State.

---

[1] See Plato’s Euthyphro and Apology

[2] See Melachim A Chapter 3 for an account of Solomon

[3] Ullmann, Arthur’s Homage to King John, The English Historical Review, Vol. 94, 356

[4] Painter, The Reign of King John, 316

[5] This was done under King Henry I’s Charter of Liberties in which Henry proclaimed that the king does not supersede the law in absolute fashion.

[6] Painter, 321

[7] All translations are taken from G. R. C. Davis, Magna Carta Revised Edition, British Library, 1989

[8] Ullmann, 358

[9] Helmholz, Magna Carta and the ius commune, The University of Chicago Law Review, Vol. 66, 305

[10] Article 17 of the Great Charter: “Ordinary lawsuits shall not follow the royal court around, but shall be held in a fixed place.”

[11] Cohen, Some Considerations on the Origins of Habeas Corpus, Canadian Bar Review XVI, 93

[12] Sharpe, The Law of Habeas Corpus, 2

[13] Cohen, 97

[14] Sharpe, 2

[15] Ibid, 4

[16] Ibid, 5

[17] Hafetz, The Untold Story of Noncriminal Habeas Corpus, The Yale Law Journal vol. 107, 2525

[18] 74 Eng. Rep. 65 (C.P. 1587)

[19] 74 Eng. Rep. 66 (C.P. 1587)

[20] 3 St. Tr. 1

[21] 3 St. Tr. 58-59

[22] Sharpe, 11

[23] Petition of Right, Clause V

[24] 3 St. Tr. 281-282

[25] (1640) Cro. Car. 570

[26] To make his subjects comply to his arbitrary taxation schemes, Charles I set up special concilliar courts where he was able to charge the accused through self-incrimination, torture, and various other methods which went against formal criminal procedure of the day.

[27] Sharpe, 15

[28] Ibid, 18

[29] 31 Car. 2, c. 2, §IX

[30] Ibid, §X

[31] Ibid, §XI – XII

[32] Ibid, §VI

[33] Sharpe, 19

[34] Schmitt, Political Theory, 12

[35] Sharpe, 91

[36] Wyzanski, The Writ of Habeas Corpus, Annals of the American Academy of Political and Social Science, Vol. 243, 103

[37] Defense of the Realm Act, §1

[38] [1917] UKHL 1

[39] Ibid. 268

[40] Ibid, 271

[41] (1886) 32 Ch. D. 123, 131

[42] (1864) 5 B. & S. 280

[43] [1910] 2 K.B. 576 (C.A)

[44] [1960] 1 Q.B. 241

[45] Ibid, 289

[46] Ibid, 291

[47] Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval stations, Article 3

[48] 28 U.S.C. §2241

[49] 339 U.S.C. 763, 764

[50] 542 U.S. 507

[51] 553 U.S. __

[52] Title 18 U.S.C. §4001(a)

[53] 548 U. S. 72

[54] (1929) 52 C.C.C. 170-173

[55] This is also stated in the Amicus Brief to Hamdan v. Rumsfeld

愛有心、親会見

inspired by solomon“爱”这个字变成简体，中间挖掉了一个“心”；“亲”这个字的简体，旁边去一个“见”。这叫做：“爱无心，亲不见”，那怎么用爱感化共产党。

 

 ”愛” 這個字變成簡體, 中間挖掉了一個 “心” ; “親” 這個字的簡體, 旁邊去一個 “見”.  這叫做: “愛無心,  親不見”,  那怎麼用愛感共產堂.

parapraxis さんの発言:
 it’s a maxim
 which means

parapraxis さんの発言:
 ”love feels nothing, kindness sees nothing”
 basically like that thing in the bible
 ”love is blah blah”

parapraxis さんの発言:
 ”love is patient, love is blind”
 but the characters
 for the saying just happens to be
 (literally) love no heart, closeness no sight

William – fixing stuff さんの発言:
 ah

parapraxis さんの発言:
 so you know why they had that whole err
 simplification
 of chinese
 with the cultural revolution right

William – fixing stuff さんの発言:
 ?

parapraxis さんの発言:
 so that the peasants couldn’t read the old books
 and absorb culture
 mao basically changed chinese (the way its written in the north)
 or simplified it
 so that the peasants couldnt read the buddhist scriptures

William – fixing stuff さんの発言:
 ahh

parapraxis さんの発言:
 and other cultural texts which were written in traditional chinese
 so naturally he changed the way a lot of characters are written
 two of those being the characters

William – fixing stuff さんの発言:
 ah

parapraxis さんの発言:
 for “Love”
 and “Kindness/Closeness”
 so in traditional chinese
 love is written like this
 愛
 you might want to blow that up
 simplified chinese
 is the same character
 except
 in traditional chinese
 right after the 5th stroke
 there is a character for “heart”

William – fixing stuff さんの発言:
 yeah it has the heart

parapraxis さんの発言:
 心

William – fixing stuff さんの発言:
 she explained that part

parapraxis さんの発言:
 but simplified doesn’t
 closeness in traditional
 is written as
 親
 simplified is the same character without 見
 so basically
 the communist party
 wants you to love without a heart
 and get close to each other without seeing each other

William – fixing stuff さんの発言:
 ahhh

parapraxis さんの発言:
 or at least that’s what the sentence implies
 at the end where it says “how are you supposed to love the communist party?”

William – fixing stuff さんの発言:
 haha

parapraxis さんの発言:
 but yeah
 good stuff

William – fixing stuff さんの発言:
 ah
 yeah pretty nice way to put it

parapraxis さんの発言:
 the communist party’s love has no heart
 and the communist party’s kindness has no hindsight

殴雨

夜明けの犬も歩けば　行き止まり
お月様を照らす　水溜まり
よけながら　ぽっかり
開いた懐に　わだかまり
何故か胸が張り裂けそうさ
喉が締め付けられるような
この要塞から抜け出ようと
試みる度に振り出しに来る
今にも落ちて来そうな空に
壊れそうな迄に　のしかかる重荷

押し潰されそうな気力
CDみたいに　傷付いて飛んだ記憶
嬉しい事も、辛い事も
別れた友、淡い過去を
諸々、想い返すだけで
熱い涙　ぽとぽと
落とす程　心が綺麗なら
きっと　別の道を歩んでるんだろう
目くるめく、変わる街を愛でるべく
項を涼しく、走るんだろう
やっと、手に入れた筈の幸せ
守るために　頑なに足枷
付けて働け、と言い聞かせ
期待してみる 虫の良い知らせ
その日暮らしの　儚さよ
夜の寝床の　暖かさよ
時の流れの　冷ややかさよ
人の身振りの　したたかさよ

だって誰もが指先は泥々
でもそろそろ魂が笑う頃
誇り捨てて積もった埃払う程　　　
景色も変わって見えるもの
人と繋がることにも税を課す
世の中で生き残って精を出す
どうか今日の願いが叶いますように
明日には気分が晴れますように

勝ち負けで決まる価値
過ちで溢れる泡の街
新聞を開けば、嘘ばかり
テレビを付けたら、空騒ぎ
そんな風に感じる時は
外に出れば、感じる一際
骨に染みる　空気の美味しさ
空に染まる　故郷の恋しさ
ああ、僕は何処に帰れば良いのか
此処でいつまで耐えれば良いのか
住めば都、されど都は去れと言う
でも誰も彼も去れずに居る
のは何故だろう　と問いかける
鳶色の夢を、追いかける
独りで天国に打ち明ける
祈りのロケットを打ち上げる
ボケッと突っ立ってるように見えて、
実はやるせなさを嘆いている
迷子のヘンゼルとグレーテル
都会の片隅で震えてる

離れる程、戻りたくなる
荷物まとめて、帰りたくなる
しこりが溶けて、柔らかくなる
変わらぬ物を、愛したくなる
本音はね、疲れちまってる
好きだけれど、嫌々やってる
本音はね、あきれ返ってる
我慢し過ぎて普通になってる
本音はね、忘れちまってる
思い出すにも出せなくなってる
本音はね、今でも待ってる
汚れててもたまに磨いてる 

そう誰もが指先は泥々
でもそろそろ魂が笑う頃
誇り捨てて積もった埃払う程
景色も変わって見えるもの
人と繋がることにも税を課す
世の中で生き残って精を出す
どうか今日の願いが叶いますように
明日には気分が晴れますように

まだ君が住むこの街に
残る想い出を集めに
雨の信号待ち　明日の雲はどんな形
無邪気に笑う子供たち
手と手を繋ぐお友達
の友達も同じ輪っかに
真っ赤に燃える旅立ちの陽

訳はのちほどやらせてもらいます～

goals for next quarter

1. lose weight (66kg)
2. be more social (cusn, mesh)
3. don’t procrastinate
4. apply for naturalization
5. go to gym/pool every other day
6. start looking for summer job
7. make “travelling” plans
8. cook more vegetables
9. write to more friends
10. update blog more often

Cultural Differences

Courtesy of Goal.com

On The Pitch

1) In Italy on Sundays, it’s church, match, home for supporters. In England, its pub, match, pub.

2) In Italy, pasta and meatballs with a glass of red wine is the pre-match meal. In England, kebab and chips with a pint of beer on the way to the stadium does the trick.

3) In Italy, the police will allow you to throw oranges at a team bus. In England you’d go to jail.

4) Italian fans behave when going abroad, but go berserk at home. English fans behave at home, but go stark-raving mad when in Europe.

5) In England, fans sit on the stadium seats. In Italy they use them as weapons.

6) In England, the stadium stewards watch the crowd. In Italy, the stewards watch the match or, as in the case at Catania, are actually club Ultras.

7) In England, if you want something to eat at a game you have to go and buy it from the stadium snack bar. In Italy, you just shout ‘A Bibitaro’ at the guy selling snacks 20 metres away, and then push your money along the row of fans as he passes a cornetto back.

In England, if you are fast, strong and powerful, and can run nonstop for 90 minutes you are a great player, even if you have the touch and skills of a donkey. In Italy, if you are tactically and technically excellent, you are a good player, even if you have the speed and mobility of a snail.

9) In England, if SKY Sports says that Peter Crouch is the best player in the world, the whole country believes and preaches it. In Italy, if SKY Italia says that Simone Loria is the best defender on the planet, the whole nation cancels their satellite subscription.

10) In Italy, ‘the end justifies the means’, and shirt-pulling, diving, cynical fouls and fooling the referee are seen as important parts of the game. In England, these things are seen as cheating, and the philosophy that ‘the means justifies the end’ is followed, with fair play more important than winning at all costs.

11) In Italy, defending is an art. In England, defending is anti-football.

12) In Italy, if a team is 3-0 down, the players all give up, while the fans abuse the team, smash up the worst player’s car, and invade training the next morning. In England, if a team is losing 8-0, the players continue to fight and chase every ball until the last minute even though the cause is lost, while the supporters continue to sing and cheer on their heroes.

13) In England, a bad referee is incompetent. In Italy, a bad referee is corrupt.

14) In England post-weekend football shows are 99% highlights and 1% analysis. In Italy shows are 1% highlights, and 99% analysis (or slow-motion replays).

15) In England, you rarely hear from chairmen, who often mind their own business and stay out of the press. In Italy, the presidents are utterly insane at times, regularly making controversial remarks, with Palermo’s Maurizio Zamparini the most infamous.

Off The Pitch

16) In Italy, bribery and corruption is a part of life. In England, a backhander is a tennis shot.

17) In England, you are innocent until proven guilty. In Italy, you are guilty until proven innocent.

18) In Italy, children are first given alcohol when they are nine months old, and learn how to respect and enjoy liquor. In England, children are banned from drinking alcohol until they are 18, and then proceed to massacre the stuff.

19) In Italy, sons are cradled by their mothers until they are 40. In England, sons have their own house and are looking after themselves at the age of 16.

20) Italian men are already shaving before they are 11-years-old, and need to use a razor every day to stay smooth. English men don’t start shaving until they are 18, and then have to wait five years just to grow a little bit of stubble on the end of their chin.

21) In England, punctuality and timekeeping is extremely important. In Italy, being on time is arriving 30 minutes late.

22) In Italy, no one who travels by train buys a ticket. In England, everyone buys a ticket, even though the prices are a scandalous rip-off and it would be cheaper to take a taxi.

23) In England, breaking the law is something you usually keep to yourself. In Italy, breaking petty rules is a source of amusement and something worth boasting about.

24) Italians who go on holiday blend into the surroundings and will turn brown in the sun. The English, who spend most their holidays recovering from sunburn, have ‘tourist’ written all over them as they trudge onto the beach with Hawaiian shirts, and socks and sandles.

25) In Italy the idea of wearing head-to-toe sporting clothing is considered unfashionable. In England wearing anything other than head-to-toe sports clothing is considered feminine.

26) In Italy, no one queues up, instead pushing in at the last minute after pretending they know someone at the front. In England, people queue up for hours, and then when they are still turned away at the end, they leave without a fuss.

27) In Italy, politics is a matter of life and death depending on which side of the fence you are on. In England it is not as important as ‘Big Brother’, a show where a bunch of talentless nobodies do nothing all day.

28) In Italy, it is normal for two people of the same sex to greet each other with a hug and kiss on both cheeks. In England, you are not heterosexual if you do this.

29) In Italy, if you go to a dinner party, you are guaranteed a six course meal, a doggy bag, and you have to refuse even more food at least 10 times before the host finally accepts no for an answer. “Are you sure, you don’t want some more?”…”Yes, I am bloody sure!” In England, you are asked to bring a bottle with you, the sausage rolls and Quavers run out after 10 minutes, and you have to make a stop at the McDonalds drive-thru on the way back home because you are still hungry.

30) In Italy, TV babes include Juliana Moreira, Ilary Blasi, Christina Chiabotto, Ilaria D’Amico and Michelle Hunziker, to name just a handful. In England it’s Jordan or Jody Marsh.

Project Workflow

DISCLAIMER:
Whenever the verb phrase “notify x” is used, it is taken to mean that the notifer shall physically /pmsg the notifiee, and not just convey what needs to be notified in the project channel or simply change the topic in the project channel.
In the event that any of the steps should become complicated, notify the project leader immediately.

1. Raw Acqusition
-Upon acquiring a usable raw file, (be it .ts or .mkv) the raw provider shall notify the encoder that the file is ready and available on the ftp.
-The encoder, upon acquiring the said file, shall prepare a work raw for typeset/general use.

2. Translation
-Upon acquiring the work raw, the translator shall provide a translation of the dialogue and a translation of the signs/credits in separate files, following the following syntax so to avoid confusion:

(dialog) project.ep.increment.txt
(signs) project.ep.signs.increment.txt

i.e.
wa.03.00.txt <– White Album, Episode 03, first pass translation.
wa.04.signs.00.txt <– White Album, Episode 04, first pass signs translation.

*Whereas the OP credits shall remain unchanged as they shall be recycled (splicing), in the case that ED credits change, translator shall create a separate file with the approrpriate translations and deliver those to the typesetter.
(for more information on ED credits, refer to typeset section)

3. Timing
-Upon acquiring a translated dialogue script, the timer shall time the dialog and scene time if necessary. After a timed file is produced, the timer shall notify the editor of its completion.

4a. Editing
-Upon acuqiring a translated dialogue/signs script, the editor shall make any edits necessary to ensure that the contents of the scripts are fluid/comprehensible.
-The editor may or may not choose to pose questions regarding the translations to the translators, which MUST take place either in PMSG or in the work channel.
-In the event that a Q&A session takes place within the project channel, the editor is responsible for making all and every change discussed and agreed upon with and by the translator.
-Upon completion, the editor shall notify the script checkers that the files are ready.
-The editor is to label the edited .ass script with the following syntax:

project.ep.increment.ass

e.g. if the translated script was (dialog) wa.03.00.txt, then the timed+edited script after first pass would be incremented to:

wa.03.01.ass <– White Album, Episode 03, first pass translation, first pass edit.

4b. Soft QC/Script Checking (a.k.a. second-pass edit)
-Upon acquiring the edited dialogue/signs script, the script checkers shall check both signs and timed dialogue scripts for grammatical and contextual errors.
-The SQC’ers may or may not choose to overlay the timed script over the work raw while checking.
-The SQC’ers shall note all errors and irregularities onto a text file, noting the times, errors and suggestions for the lines which they deem necessary for revision.
-Upon completion of QC, the script shall be remanded to the editor, who shall apply changes as necessary.

4c. Script Merging
-Upon notification and reception of checked scripts (in .txt form) the editor will merge all the noted changes and suggestions into the first pass edit file.
-After making all the necessary changes and modifications, the editor will increment the file as following:

e.g. if the edited script was wa.03.00.txt, then the timed+edited script after first pass would be incremented to:

wa.03.02.ass <– White Album, Episode 03, first pass translation, first pass edit, second pass edit.

any additional changes to the main script shall be henceforth incremented in this way.

5. Typesetting/Styles Application
-Upon receiving a finalized signs edit script, the typesetter shall typeset the signs as necessary.
-If typesetter notices any anomalies during typeset, he/she is to notify first the editor, who may or may not choose to consult the translator for further aid on the matter.

**ED CREDITS
-Upon receiving the translated credits file from the translator, the typesetter shall first typeset the credits, and then create a clip of the overlay file which shows that the typeset is fully functional without error.
-This said clip should be encoded in either .avi or .mkv format, and should also contain the ED karaoke of the parts in which the ED credits appear.
-Upon completion of ED credits typeset, the typesetter shall notify the encoder, who shall evaluate the file and decide whether or not to use the file.

***Criteria for Usage of ED Credits:
the ED Credits shall be deemed unusable if the following can be seen on screen
-overlap with ED Karaoke on any parts of the karaoke in any scene.
-poor alignment of ED credits
-poor timing of ED credits

-Once all the signs have been typeset, the typesetter shall notify the encoder that it is completed.

6. Encoding
-Upon and ONLY UPON receiving:

a. edited/script checked dialogue script
b. edited/script checked/typeset signs script (.aep or .ass)
c. shifted OP/ED script
*d. confirmed ED Credit script

the encoder shall encode a release candidate of the episode, and label the encoded rc with the following syntax:

[RC#]series.ep.[CRC].mkv
i.e. [RC1]WA.02.[DEADBEEF].mkv

-Upon completion of RC encode, the encoder shall notify QC of its completion.

7. QC
-Upon acquisition of encoded file, QC shall produce a QC report in .txt form following the below criteria:
a. grammatical errors/spelling mistakes
b. general timing errors
c. encode glitches
d. op/ed errors.
-the checker shall report any and all errors detected, and notify the editor and the project leader once QC is complete.

8. Remux and Release
-Upon receiving the qc report, the project leader and the editor will discuss the necessary changes, after which the editor will make the necessary changes to the script and remand to encoder.
-Once a release candidate is deemed ready for release, QC and/or encoder will notify the project leader.

Inspired by Kanye

In the night, I hear ‘em talk,
the coldest story ever told
Somewhere far along this road, he lost his soul to a world so heartless..
How could you be so heartless?
Oh.. How could you be so heartless?

How could you be so, cold as the winter wind when it breeze
Just remember that you talkin’ to me though
You need to watch the way you talkin’ to me
I mean after all the things that we’ve been through
I mean after all the things we got into
Hey, I know of some things that you ain’t told me
Hey, I did some things but that’s the old me
And now you wanna get me back and you gon’ show me
So you walk around like you don’t know me
You got a new friend, well I got homies
But in the end it’s still so lonely

In the night, I hear ‘em talk,
the coldest story ever told
Somewhere far along this road, he lost his soul to a world so heartless..
How could you be so heartless?
Oh.. How could you be so heartless?

How could be so Dr. Evil, you bringin’ out a side of me that I dont know..
I decided we weren’t gon’ speak so
Why we up 3 A.M. on the phone
Why is the world so mad at me?
Homie I dont know, the world’s so hot and cold
I won’t stop, I won’t mess my groove up
‘Cause I already know how this thing go
You run and tell your friends that you’re deserting me
They say that they don’t see what you see in me
You wait a couple months then you gon’ see
You’ll never find nobody better than me

In the night, I hear ‘em talk,
the coldest story ever told
Somewhere far along this road, he lost his soul to a world so heartless..
How could you be so heartless?
Oh.. How could you be so heartless?

Talkin’, talkin’, talkin’, talk
Baby let’s just knock it off
They don’t know what we been through
They don’t know ’bout me and you
So I got something new to see
And you just gon’ keep hatin’ me
And we just gon’ be enemies
I know you can’t believe
I could just leave it wrong
And you can’t make it right
I’m gon’ take off tonight
Into the night…

In the night, I hear ‘em talk,
the coldest story ever told
Somewhere far along this road, he lost his soul to a world so heartless..
How could you be so heartless?
Oh.. How could you be so heartless?

On “Military Commisions”

The military commissions as established by Military Commission Order No.1 and the Military Commissions Act of 2006 depart from international law in the aspects of procedure and purpose. Whereas the military tribunals established therein by the executive branch of the United States serve the purpose of trying “illegal enemy combatants” in simply determining guilt or innocence and operates in a way equitable for such a purpose, tribunals as interpreted and established by the International Covenant on Civil and Political Rights (henceforth abbreviated as ICCPR) and the Geneva Conventions attempt to provide its accused with a non-partisan, humanitarian trial with fairness and justice in mind and in procedure. In determining how these courts depart from one another, it is first necessary to examine how they operate and also the circumstances in which these courts are called into convention; as it is my conviction that international law should be given more recognition and credit than it has received in the course, I will focus first on the supremacy of the humanitarian commissions as established under international law, then move on to elaborate on the failures and inadequacies of the military commissions established by the executive branch of the U.S. to counteract what has now developed into a legal crisis at Guantanamo Bay.

The United Nations, as a humanitarian organization, operates under the obligation of promoting universal human rights, and thus recognizes that “the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”[1] and ensures to all individuals (at the least those associated with the signatories of the ICCPR) the said inalienable rights, without distinction to “colour (sic), sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[2] Thus the United Nations leaves no doubt as to their positioning when it comes to matters of justice; as they are solely concerned with affording to each and every individual under their influence inalienable human rights regardless of who they are and to what circumstance they may have befallen onto, the United Nations will always opt to provide an apolitical, unbiased solution toward exigent problems.

One thing to note however, is that the these inalienable human rights apply not only to those who are simply observing and inhabiting within the just social order that the United Nation endeavors to create on earth, but also to those who are violating or are committing acts that are in violation of the said human rights. Although it is a given that the guilty are naturally not afforded the same broad spectrum of rights that the innocent enjoy, the UN acknowledges the fact that wrongdoers are also entitled to human rights, and therefore ensures that “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release”[3] an idea (anachronistically) echoed by the infamous Common Article 3 of the Geneva Conventions which state that “ the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples [are prohibited at all times].”[4]

The ICCPR, which can perhaps be seen as the international corollary to the American Bill of Rights, also details procedures that should be taken in assessing violators of human rights of their guilt while at the same time affording them the maximum—if not the same—amount of freedoms and rights that are bestowed upon non-law-violating individuals. A good example which illustrates the UN’s impartiality against the guilty (or at least until they are proven so) is found within the provisions of the Geneva Convention Relative to the Treatment of Prisoners of War (henceforth abbreviated as Geneva III) which strictly mandate that captors of Prisoners of War, whom by virtue of being Prisoners of War are “guilty” for aggrandizing war against the captors’ nation, ensure that their captives are “at all times humanely treated,” prohibiting any unlawful act or the “omission of acts” which may result in “causing death or seriously endangering the health of a prisoner of war in its custody,”[5] a statement which is (anachronistically) echoed by the United Nations Convention Against Torture, (henceforth abbreviated as UNCAT) which prohibit any acts of injustice in the form of torture being performed upon any individual under any circumstances regardless of whether “a state of war or a threat of war, internal political stability or any other public emergency” is at stake.[6]

Not only does international law provide for the safety of the accused, it offers many of the same judicial rights afforded to a citizen in the United States: the guilty is afforded with an equivalent of the Miranda Rights through provisions which ensure that “the accused shall be given precise information regarding the offences of which he is accused, and given an opportunity of explaining his conduct and of defending himself”[7]; self-incrimination of the 5^th Amendment sort is banned as per provisions which maintain that “any statement which is established to have been made a result of torture shall not be invoked as evidence in any proceedings”[8]; and also within the spectrum of the 5^th Amendment, double jeopardy is also prohibited under provisions which guarantee that the guilty “shall [not] be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law.”[9]

But most importantly, international law provides the ever important right of being able to address oneself in front of a court of law. Article 14 of the ICCPR states that “all persons shall be equal before the courts and tribunals… everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” thereby granting all citizens of the humanitarian world the ability to address and redress injustices before a panel of arbiters. The same article goes on further to ensure that the accused shall have the “right to be presumed innocent until proved guilty according to law,” and also in what may seem a corollary to the landmark decision reached in the 2008 Supreme Court ruling of Boumediene v. Bush: “everyone shall be entitled… to be tried without undue delay.”

While Kelsen would be generally approving of the above provisions of international law and recognize them to be solid examples of normative law based on a Grundnorm of sorts, Schmitt and perhaps Agamben would note that while the above provisions may provide useful guidelines of conduct during peacetime, social order tends to from time to time, fall into a state of emergency (or under the mercy of the Schmittian Exception, if you will) in which said normative processes will hinder the progress of the social contract, specifically the part where the citizens let the proverbial Leviathan[10] perform its due role. International law, however, also makes sufficient provisions to satisfy this notion, specifically by allowing signatories to “take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation.”[11] Furthermore, it should be noted that the provisions of the Geneva Conventions come with a kill switch which states that its signatories (or its High Contracting Parties) “shall be at liberty to denounce the present Convention,”[12] thus allowing the (hopefully) temporary halt standstill of normative law and process during states of emergency, albeit notwithstanding the fact that certain conditions need to be met before signatories can actually denounce the provisions of the conventions.

The question that needs to be addressed at this point then is quite clear: firstly that of (1) what rights and privileges are then afforded by civilians and partisans alike during a state of emergency under international law, and that of (2) with whom rests the authority during the said state of emergency.

While international law maintains that state of emergencies are inevitable and allows for the suspension of law to accommodate for such situations, it also maintains that certain humanitarian guarantees and rights cannot be compromised regardless of space and time. International law states that at no time shall the inherent right to life be deprived; the act of torture be sanctioned; any individual be held in servitude; held guilty of any criminal offence on account of any act or omission which does not constitute a criminal offence; be deprived of the right to be recognized as a person before the law; or have their freedom of thought, conscience, and religion taken away from them.[13]

On the question of whether Grundnorm or the Hyper-legitimate Sovereign rules supreme during times of exigencies, however, the answer seems to be solidly in favor of the normative legal process. As the namesake implies, international law pertains to law and conduct between and regarding nations, and even the derogation of international law provisions during states of emergency are contingent to this schema of the “law of nations”; although members of the United Nations are allowed to denounce and/or derogate certain provisions of international law, they are mandated to “immediately inform the other States [that are also signatories].”[14] States which have foregone the aforementioned derogation of provisions also may not interpret the provision as being that which allows the state to “engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein,”[15] an idea also echoed in the Geneva Conventions which also states that the application of provisions “shall not affect the legal status”[16] of the conflicting parties.

Thus it can be contended that any tribunal or commission that is created under international law must follow the provisions mentioned above in settling the ever-important issue (at least for our purposes) of how to deal with a new category of individuals whom do not fall under the Geneva-provided categories of the wounded (Geneva I and II), prisoners of war (Geneva III) or civilians during time of war (Geneva IV). Although critics of the conventions will ascertain that Geneva Conventions legally do not apply to the illegal enemy combatants due to the fact that they do not identify themselves as being members of a specific nation-states and have not signed the treaties; and furthermore ascertain that they are “violating the fundamental principle that war is waged only against combatants.”[17]Although this logic is not flawed in sustaining that applications of international law can be suspended given circumstances, it does not account for the fact that the “legal status of conflicting parties” remains unchanged no matter what provisions are called into duty or used against an individual; so long as an individual is born human, the individual cannot be deprived of “his right to be recognized as a person before the law”[18] nor can this legal status be changed by any act of state, including those that changes one’s legal designation so that he/she may not be tried under the law as an individual (i.e. Military Commissions Order No. 1).

In terms of extralegal military commissions and tribunals which serve in lieu of civil courts and higher courts during wartime, international law provides both general and specific alternatives to civil and domestic courts which are designed to serve the humanitarian interests of individuals during peacetime. Insofar as general provisions are considered, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (henceforth abbreviated as Geneva IV) states the following about enemy combatants or belligerents’ rights:

“when in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communications under the present Convention,”[19]

 

thereby ascertaining that hostile military and/or enemy combatants during a state of emergency can be deprived, or is seen as being deprived of their would-be rights of conduct under international law. Although the militant’s right of conduct may be deprived by the occupying state, international law still maintains that with or without the right of conduct a human can never be found without his alienable rights as ascribed (anachronistically) by the ICCPR:

“In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention”
and thus the convention in brief maintains that no matter what exigent circumstances may arise, an individual may never be found without or deprived of his right to Habeas Corpus. Although critics of the Convention, as previously referenced to, have argued in the past that “illegal enemy combatants” do not fit under the categories listed under the conventions and therefore can be indefinitely deprived of their Geneva rights, the inherent fact that each Geneva Convention guarantees the same inherent right of trial to different categories of individuals (i.e. the wounded, civilians, prisoners of war, etc.) coupled with Geneva III’s provision which guarantees the same rights to individuals whose status is in doubt “until such time as their status has been determined by a competent tribunal,”[20] clearly shows that the right to access the writ of Habeas Corpus is intended for each and every individual, regardless of their status, under international law.

But as Socrates found out with Thrasymachus in the debate on justice, it is sometimes more beneficial for one to the sake of an argument to provide examples of what is right, as opposed to relying on ad absurdum proof to eventually reveal the right answer, and accordingly international law provides two outstanding examples of what a “model tribunal” or a “model committee” should resemble: the Human Rights Committee as detailed in Articles 28 through 45 in the ICCPR, and the Committee against Torture as detailed in articles 17 through 24 in the UNCAT.

                   Although these two model committees are structured for different purposes with the Human Rights Committee resembling a peacetime court dedicated to safeguarding individual human rights and the Committee against Torture resembling a wartime court dedicated to determining whether violations of the laws of war have actually taken place, it would be in the best interest for the purpose of determining what a model committee commissioned during states of emergency should be incorporated with to examine the procedures and protocol currently associated with the Committee against Torture (henceforth abbreviated as “the Committee.”) 

                   The UNCAT mandates that an adequate Committee be consisted of 10 “experts of high moral standing and recognized competence in the field of human rights” whom will serve as the arbiters of the issues brought before the committee, elected in a manner impartial to nationality, religion, sex, etc. by way of secret ballot.[21] The Committee’s members are also subject to a term limit, and may only remain incumbent for a period of two-years (pending re-election); all decisions made by the Committee is pending a quorum of six, and a majority of the members present.[22] The Committee also allows for the admission of “reliable information which appears to it to contain well-founded indications that [violations are] being systematically practiced in the territory of a State Party,”[23] but restricts the admission of any evidence “which is anonymous, or considers it to be an abuse of the right of submission of such communications,”[24] thereby eliminating hearsay evidence as a player in the arbitration process. Further safeguards against the admission of hearsay admission is found outside the provisions of the Committee, where the UNCAT explicitly states that all signatories must ensure that competent authorities “proceed to a prompt and impartial investigation”[25] where an “impartial investigation” is taken to mean an investigation “free of bias”, which if the word “hearsay” were to officially be registered with an antonym, would rise to the top of the list of the likely candidates.

                   As the basis of comparison has now been established on the subject of the legitimacy of military committees and tribunals, the illegitimacy of committees and tribunals can now be brought to attention. The specific committees and tribunals that are to be put under the scope of investigation, as formerly mentioned, are (1) those that were created by Military Commissions Order No. 1 and subsequently dismissed in Hamdan v. Rumsfeld and (2) the committee and tribunal setup through the Military Commissions Act of 2006, and subsequently questioned in Boumediene v. Bush.

                   Military Commissions Order No.1 was an executive order issued forth by the President of the United States in the aftermath of the 9/11 attacks which was issued to provide judicial ruling over those accused of violating the laws of war, and also to ensure that any such individual “receives a full and fair trial before a military commission.”[26] The commissions created therein do not stray away from the likes of the humanitarian courts established by the ICCPR and the Geneva Conventions in that it provides the right to counsel through appointing to the accused counsel who is to “defend the Accused zealously within the bounds of the law without regard to personal opinion as to the guilt of the Accused.”[27] The order goes further to give the accused the benefit of presumed innocent until proven guilty, reasonable doubt, self-counsel, and even double jeopardy.[28] There are however, two crucial factors which tip the committees thus formed as inadequate which both revolve around the role of the “Presiding Officer”: the first of these deals with the admission of evidence in that the criteria for the legitimacy of evidence admissible in court lies solely with the discretion of the Presiding Officer. Paragraph D of Article 6 clearly states: “evidence shall be admitted if, in the opinion of the Presiding Officer, the evidence would have probative value to a reasonable person,” thus clearly stating the eligibility of hearsay evidence. The second of these inadequacy lies with the Presiding Officer’s executive ability to “close” the court proceedings and opt to review all sentences and evidence against the accused in camera,[29] thus rendering the accused completely oblivious of the charges and evidence brought before him in court.

                   Given the above inadequacies, the commissions established under the Military Commissions Order No. 1 were ruled to be inadequate and an act in which congress “unconstitutionally suspended the writ of Habeas Corpus” in Hamdan v. Rumsfeld[30], which prompted the government to establish a new system of military commissions established under the Military Commissions Act of 2006 (henceforth abbreviated as HR-2166). It would be an understatement to say that HR-2166 is the biggest departure from the procedural rights afforded to an individual in judicial processes by international law, as HR-2166 denies to all courts “jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant[31] or is awaiting such determination.”[32] HR-2166 further encroaches upon the rights of the accused by denying them the procedural rights afforded to them under the Unified Code of Military Justice, specifically those referenced in Articles 10 (relating to speedy trial, including any rule of courts-martial relating to speedy trial,) 31 (relating to compulsory self-incrimination,) and 32 (relating to pretrial investigation.)[33] These blatant encroachments against procedural rights were deemed unconstitutional in the Supreme Court ruling of Boumediene v. Bush which claimed that HR-2166 effectively “eliminated the statutory habeas jurisdiction” and also contended that such liberal application/removal of the Habeas writ is akin to “switch[ing] the constitution on or off.”[34]

                   As apparent as the legitimacy of the humanitarian provisions of international law seems to be, the fallacy of international law lies within its identity as a system of agreements which bind its signatory nations together. Given that the very same people to whom the laws and provisions are applied to are the ones who enforce the law as well, it is hard to justify or formally accepted as legal and binding contracts, as much as the idea Lockean idea of the social contract—although it is now taken to be a natural process observed by any political society—can be taken as a legitimate and legal order or process within the state. But if the words of Hugo Krabbe can be marked to be true where the shape of modern society has come to be in that “it is not the state, but the law, that is sovereign,”[35] there may yet be hope for international law to rise as the humanitarian sovereign order that is so badly needed in current times where the state of exception is no longer an exception, but a recognized rule of society itself.

 

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[1]International Covenant on Civil and Political Rights, preamble

[2]Ibid., Article 2, paragraph 2

[3]Ibid., Article 9, paragraph 3

[4]Geneva Conventions Common Article 3 paragraph 1d

[5]Geneva Convention Relative to the Treatment of Prisoners of War, Article 12

[6]United Nations Convention Against Torture, Article 2, paragraph 2

[7]Geneva Convention Relative to the Treatment of Prisoners of War, Article 96

[8]United Nations Convention Against Torture, Article 15

[9]International Covenant on Civil and Political Rights, Article 14

[10]In reference to Hobbes’ Leviathan, a metaphorical analogy to the government, which according to Hobbes is “but an Artificial Man; though of greater stature and strength than the [individual possessing] Natural [rights], for whose protection and defense it was intended…” (Hobbes, The Leviathan, Chapter 1)

[11]International Covenant on Civil and Political Rights, Article 4, paragraph 1

[12]Geneva I, Article 63; Geneva II, Article 62; Geneva III, Article 142; Geneva IV, Article 158

[13]International Covenant on Civil and Political Rights, Article 4, paragraph 2

[14]Ibid., Article 4, paragraph 3

[15]Ibid., Article 5

[16]Geneva Common Article 3

[17]John Yoo, UC Berkeley News “Commentary: Behind the ‘torture memos’ ”, 4 January 2005

[18]International Covenant on Civil and Political Rights, Article 16

[19]Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Article 5

[20]Geneva Convention Relative to the Treatment of Prisoners of War, Article 5

[21]United Nations Convention Against Torture, Article 17

[22]Ibid., Article 18

[23]Ibid., Article 20; Although the original wording of the text pertains to the act of torture, since torture is a violation of the laws of war as established by international law, it is interpreted here to apply to “violations of the laws of war.”

[24]Ibid., Article 22

[25]Ibid., Article 12

[26]Military Commission Order No.1, Article 1

[27]Ibid., Article 4, Paragraph C

[28]Ibid., Article 5

[29]Ibid., Article 6, Paragraph D, §5

[30]548 U.S. 557 (2006)

[31]A status which is assessed by a separate tribunal known as the Combatant Status Review Tribunal, which is corollary to tribunals mentioned in Geneva III, Article 5

[32]HR-2166, §7a

[33]Ibid., §948b.

[34]553 U.S. ___ (2008)

[35]The Modern Idea of the State, trans. George H. Sabine and Walter J. Sheperd (New York and London, 1927)

barack obama is not black… not even half black.

The 2008 preseidential elections has observed both the liberal and conservative media in america capitalizing on the fact that america had democratically elected its first African-American president, as the results of the elections became self-evidently in favor of the junior senator from Illinois.

What the media has not done, however, is correctly publicize the fact that Barack Hussein OBAMA Jr. is not actually black, or even half black, for that matter. Although to their credit, the media did address the fact that OBAMA is half black by the virtue of his mother, Stanley Ann DUNHAM, being of less colorful ancestry.

Another thing that the media has failed to report, is the fact that even the senator’s father, Barack Hussein OBAMA Sr. is not purely of African (or African-American) descent, which has been the subject of some interest and research of dutch genealogists and writers at de Volkskrant, who have discovered the following fact about OBAMA’s great-grandparents:

Mr. Jelle Obbema, a Frisian, who around 1870 left Friesland for Kenya [made] a small fortune in the peppermint oil business. He was one of the founders of the famous Frisian King Peppermint company.

While in Kenya… Mr. Obbema had many love affairs. Offspring of these affairs were given the name Obama, the African version of the Frisian name Obbema. One of the sons was Sjoerd-Bark Obama, Barack Obama’s great-grandfather.

…finally, there is an Obbema Family Crest and on the crest are the words “Ja, wy kinne – Yes we can.”

 This claim by the prestigious dutch publication was further backed and echoed by independent research findings submitted to Elsevier.nl, currently the world’s largest publisher of scientific papers, which reports that:

Senator Barack Obama, vying to be the first African-American president, has been known to have white ancestors who were in possession of slaves, according to a genealogist.

(Senator Barack Obama, die de eerste zwarte president van Amerika wil worden, heeft blanke voorouders die in het bezit waren van slaven, zegt een genetisch onderzoeker.)

Having acquired this new piece of fact, and after consulting a decent amount of sources online concerning the geneology of Barack Hussein Obama Jr., the following family tree (mapping also the “purity” of his caucasian counterpart) can be hypothesized:

Fifth Generation (Great Great Grandparents)
Jelle OBBEMA   -  ?   (100% Caucasian + 100% African)

Fourth Generation (Great Grandparents)
Sjoerd-Barack OBAMA  -  Nyaoke   (50% Caucasian/African + 100% African)

Third Generation (Grandparents)
Hussein Onyango OBAMA  -  Akumu   (25% Caucasian/75% African + 100& African)

Second Generation (Parents)
Barack Hussein OBAMA Sr.  -  Stanley Ann DUNHAM   (12.5% Caucasian/87.5% African + 100% Caucasian)

First Generation
Barack Hussein OBAMA Jr.   (58.75% Caucasian/41.25% African)

Below is a picture of the man who started it all, Mr. Jelle Obbema of the King Peppermint fame:

Oh and on an unrelated note, it seems that our new president-elect is a Hammer’s fan.