Reading Ed Brayton's discussion of the contrasting behaviors of our two presidential candidates with regards to law and Supreme Court decisions, I couldn't resist comment.
One of the few advantages of medschool is that it keeps me from reading the news while I'm studying for exams, most recently my internal medicine shelf exam yesterday. Thus I'm protected from a state of constant fury from the idiocy of our dear leaders. This being a post-study day I unfortunately ended up reading this statement from John McCain from George Will's article that giving Gitmo prisoners habeus rights was "one of the worst decisions in the history of this country."
Wow. To his Will's everlasting credit - he is a legitimate conservative and not a self-righteous hack serving a single political party - he follows this statement with what I immediately thought of in response to such an inane statement:
Does it rank with Dred Scott v. Sanford (1857), which concocted a constitutional right, unmentioned in the document, to own slaves and held that black people have no rights that white people are bound to respect? With Plessy v. Ferguson (1896), which affirmed the constitutionality of legally enforced racial segregation? With Korematsu v. United States (1944), which affirmed the wartime right to sweep American citizens of Japanese ancestry into concentration camps?
And now I'm back to fury again. A candidate for presidency of this country states that a ruling that protects a right existing since the Magna-Freaking-Carta is one of the worst ever? On the level of Dred Scott?
Time to study some pediatrics. Politics in this country is just embarrassing when we can actually be debating a 800-year-old human right.
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And McCain was tortured in a POW camp, fer Zarquon's sake. This man had an opportunity to take the moral high ground from a very personal perspective. And he blew it.
I rarely agree with George Will on anything save Baseball, but I find him at least honest in his assessment of issues most of the time. Wrong sometimes, but honest.
He also came out as an agnostic recently for whatever that's worth.
On McCain, is it me or are the calls of him being a lot like Bush seemingly becoming more and more true? Not just on policy, on brain processing power and rationality. This sounds like something that would slip out of Bush's forever open for breathing mouth before his daddy Cheney or his handlers would be able to tell him the "correct" thing to say.
McCain has sealed (off) his chances for election, IMO. He is almost too ... ignorant? stupid? what? ... to believe. Pandering, pure and simple.
If the "red states" think constitutional rights are "frivolous" then I guess it's a good thing there are enough of the rest of us around to go to bat for our--everyone's--rights. Sheesh.
You exaggerate: "...debating a 800-year-old human." Sure McCain's old; older than carbon dating and Alaska, but he's not yet 800.
This isn't a question of right and wrong. It is a question of rights. More specifically, the supreme court interprets the constitution of the United States. Does the constitution confer rights to non-US citizens on foreign soil?
The Magna Carta, for example, did not address French rights or German rights. It only addressed the rights of the King and his loyal subjects.
How does our constitution confer any rights upon foreign combatants being held in Cuba?
How does our constitution confer any rights upon foreign combatants being held in Cuba?
The decision specifically addressed the "in Cuba" issue. In Havana would be different from in Guantanamo. And the Constitution does talk about international treaties. The US has been concerned about treatment of its warriors during previous wars; making up a term like "foreign combatants" is merely a disingenuous attempt to run around bans on torture and human rights.
It's a shame, red-staters seem to think that the only Constitutional right that matters is the second amendment. They get crazy when someone tries to limit that, but take away others and they are fine...
Whatever...
Also, Guantánamo Bay is US territory, it's not really "in Cuba". Of course there is a lot more to that as the current Cuban government thinks the US presence there is illegal. Still though, it's US territory.
Precisely!
McCain is first and foremost a politician running for the office of president in the USA, which happens to have, if I understand correctly, complete jurisdiction and control over Guantanamo Base, so we are not talking foreign soil here. As for rights, we are talking about basic human rights, irregardless of country of origin, ethnicity or religious affiliation. Granted, the current administration of the United States does not seem to hold the Universal Declaration of Human Rights adopted by the United Nations General Assembly in very high regard, even if they have not as of yet explicitly stated that it doesn't apply to them, they certainly have expressed contempt for the same.
Re Politics:
http://www.n55.dk/MANUALS/DISCUSSIONS/N55_TEXTS/AB_ideologies.html
The fundamental purpose of politics is to protect the rights of persons. If we deny this assertion we get: the fundamental purpose of politics is not to protect the rights of persons. This suggests that one of the basic tasks of politicians could be, for example, to renounce the rights of themselves and of others. This has no meaning. Or that there is a more important purpose to politics which does not have anything to do with persons and therefore also has nothing to do with the rights of persons. That is plain nonsense. Therefore, we now know that the basic purpose of politics is to protect the rights of persons. In other words we can not talk about politics in a way that makes sense without the assumption that the fundamental purpose of politics is to protect the rights of persons.
McCain is showing that to him, the most important function of politics is for him personally to achieve power. So he is promising things to people he thinks can help him achieve his goal.
Don't get me wrong, I loathe McCain and think he is borderline retarded. I do, however, think that the question of whether or not non-citizen enemy combatants (or prisoners of war, or whatever) are afforded the rights guaranteed by our judicial system.
I personally believe the answer is "yes". But it's not nearly as cut-and-dried as some of the comments indicate.
It's not about rights guaranteed by *OUR* judicial system to our citizens. It's about universal human rights, either you accept that such a thing exists or you don't.
The problem Ed is that many of these people were not lifted from some battlefield or are obvious combatants. Fully a third have been exonerated completely. The case that got to SCOTUS concerned a Croatian who was cleared by his country's authorities, then kidnapped by the CIA from his country.
People have a notion that these are people picked up from Afghanistan shooting at troops (which still shouldn't eliminate human rights) but many are people we've picked up from within our own country (one in Oregon here with a visa was sent to Syria for torture, then kept in Gitmo).
I think it really is cut and dried. We are guilty of kidnapping people and holding them without trial in contradiction of 800 years of common law and human decency.
"People have a notion that these are people picked up from Afghanistan shooting at troops (which still shouldn't eliminate human rights)"
I admittedly have not followed this closely enough to have a well thought out opinion, but I disagree with this statement. Perhaps we are disagreeing over the definition of what human rights are, but obviously, when you are an enemy of the state or a criminal or in some other way infringe on the rights of others, you subject yourself to giving up many of your own rights. You may forfeit your right to freedom and be incarcerated. You may even forfeit your right to life and be killed.
Military law and civil law often conflict. I honestly am not sure how I feel about what is happening. Perhaps, if I knew more about the situation, I would feel more strongly one way or the other, but I certainly can envision situations where an individual's rights are not as important as the safety of the nation.
In the case of civilian noncombatants, obviously the 9/11 conspirators would have been considered noncombatants on 9/10/2001. It is a different world. What we are seeing are growing pains while we determine the proper ratio of individual rights to national security.
I regret (Boy, HOWDY do I regret) to say that it's not a "red state" issue. Both sides of the aisle have bought into the idea that the People Of These United States want nothing more than to be Protected From The Evil Ragheads^WTerrorists and that no silly old parchment should be allowed to stand in the way. The last seven years have been a land rush to expand power while the getting's good, and since both sides see a chance to be the ones who get to use that power, there's not much disagreement on the overall objectives.
As for "I guess it's a good thing there are enough of the rest of us around to go to bat for our--everyone's--rights," I gather that you haven't looked at the vote tallies over the latest warrentless wiretapping legislation. Unanimous Republicans in support of giving the White House more than it asked for, the Democrats split evenly.
Yeah, I feel secure knowing that the party in control of Congress is looking out for me.
Stir this together with the self-evident Right to Cheap Imported Goods and the Right to Lifelong High-Wage Employment, and you have the true issues that will underly this years elections.
The "right" to due process is never given up. That is the "right" that the Supreme Court upheld. If there is no "right" of habeas corpus, then there is no "right" to due process.
Many of the people at Guantanamo were not picked up shooting at US troops. They were captured by Afghanis and turned over to US troops for a bounty. Anyone who could pass muster as a "foreign fighter" and wasn't the good friend of someone got captured and sold as a "foreign fighter".
That is why most of the prisoners at Guantanamo have been released with no charges, no trial, no evidence, with nothing to show except the scars from their torture.
I note that Bill of Rights talks about persons not citizens. Thus if we are to accept the by-the-letter interpretation of the constitution that conservatives demand, no one in Gitmo has any less rights than any U.S. citizen.
No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Geneva Conventions III, Article 99
Geneva Conventions III, Article 103
Bill, can you see several articles broken by the detention at Guantanamo? For the record, the Geneva Conventions are legal binding for the US.
Ah, but that doesn't apply because they're not "prisoners of war:" they're "enemy combatants."
You know the drill: "I am a freedom fighter, you are irregular forces, and he is a terrorist."
Does the constitution confer rights to non-US citizens on foreign soil?
Guantanamo is a US base and so effectively US soil. McCain was born on a US military base in Panama (I think) so if Gitmo is not the US then neither is McCain's birthplace and he is not eligible to run for the presidency. Besides which, US citizens were and possibly are being held at Gitmo. Remember Padilla?
I do, however, think that the question of whether or not non-citizen enemy combatants (or prisoners of war, or whatever) are afforded the rights guaranteed by our judicial system.
So then you must also think it's ok if Americans are not afforded the rights (if any) guaranteed by foreign judicial systems if they are captured, arrested, or kidnapped. Fair's fair after all.
Dianne, of course we should be following rules. The question I was raising is which rules do we follow? The Supreme Court only reviews cases with regard to constitutional law. In other words, are prisoners in Guantanamo entitled to any rights under our constitution? I don't know. I would think that UCMJ and International Rights Law (rules of war) would apply, but I don't understand how the US constitution would apply to foreigners being held on a US military base in a foreign country.
What I was trying to point out is there is a difference in what I think is right or wrong and what rights are guaranteed under specific laws.
Bill, if the US base at Guantanamo is a foreign country, then McCain isn't eligible to run for president at all. He was born on a base in Panama, making him not a native born US-American. I suppose you can have it both ways, not being a candidate for president this year and probably being US born anyway, but McCain certainly can't. Nor did you address the question of US-Americans being held there. Are they suddenly non-entities?
I am aware of McCain's place of birth and also that US military bases on foreign soil are considered territory of the United States. I just don't see what that has to do with what governmental body has jurisdiction over military actions. I don't know if it would be different even if they were held at Fort Dix.
If you want to argue that congress has implied authority over this matter due to the constitutional provisions whereby it has the power to organize and fund the military for the defense of the nation, that would make more sense to me than the Supreme Court being involved in this. (Obviously there is more to the situation than I see or they wouldn't have agreed to review it.)
The Geneva Convention rules you are referring to apply to uniformed combatants. They do not apply to terrorists. It has always been that spies and terrorists were handled differently and without the same rules. This is a different type of war. It is not country against country. That part of the war is over.
Now, with all that said, I get back to my original point. I don't know enough about what is going on to form a hard, fast, opinion of what should or should not be done. What I do know is, the older I get and the more I learn, the less I know for fact.
I do, however, think that the question of whether or not non-citizen enemy combatants (or prisoners of war, or whatever) are afforded the rights guaranteed by our judicial system.
So then you must also think it's ok if Americans are not afforded the rights (if any) guaranteed by foreign judicial systems if they are captured, arrested, or kidnapped. Fair's fair after all.
I am aware of McCain's place of birth and also that US military bases on foreign soil are considered territory of the United States. I just don't see what that has to do with what governmental body has jurisdiction over military actions. I don't know if it would be different even if they were held at Fort Dix.
Any period spent by a prisoner of war in confinement awaiting trial shall be deducted from any sentence of imprisonment passed upon him and taken into account in fixing any penalty.
bill:
So if I understand you correctly, there is no Constitutional bar to your being dragged out of your house today and hauled off to Gitmo for the rest of your life (which might be short, or seem like forever) as long as it's done by the armed forces instead of civilians?
The Geneva Convention rules you are referring to apply to uniformed combatants. They do not apply to terrorists.
It is a common misconception that the Geneva Convention rules apply only to uniformed combatants. In reality, the Geneva Conventions set down rules for any persons held in enemy hands, uniformed or nonuniformed. The protections afforded to nonuniformed combatants who do not qualify as Prisoners of War are weaker than those afforded to uniformed combatants, but nevertheless include prohibition of
From the International Committee of the Red Cross Commentary to the 4th Geneva Convention (1958):
Were there American citizens taken from American soil and placed in Guantanamo?
Okay, let's change things up for just a minute. As I understand the situation, there are people are being held until the cessation of fighting in Iraq and Afghanistan. What would you suggest we do with them? Should they be sent home to continue fighting? It is my understanding that many foreign nationals being held are eligible for release if their home country would only accept them and guarantee they would no longer be a threat to the US. If their own country will not take them back, what do you suggest we do with them? Will habeas corpus proceedings help them to get home quicker if their own country won't take them back?
If you capture an enemy soldier in uniform, there are certain rules that apply under the Geneva convention. If you have someone that is sneaking around trying to strap on a bomb and position themselves in a crowd in order to kill as many innocent civilians as possible, The same rules do not apply. How do you suggest that they be handled if captured?
If they are supplying bomb making materials to suicide bombers, how should they be treated?
Even if they are American citizens, if they are captured on foreign soil fighting against US troops, what should happen to them?
I don't know what the conditions are in the detainment camps there. I hope it isn't too pleasant, but I also don't think it is right for anyone to be tortured. I'm not exactly sure of the definition of torture, either. If there is discomfort and embarassment, but no permanent damage, is it still torture? I don't know.
For people that are scientists, you are very willing to accept that the reported torture is factual and 100% accurate. Where is the skepticism? You are quick to believe it is rampant and that it is not a few isolated incidents. I guess I am more inclined to give our military the benefit of the doubt than to believe that the stories told by the detainees are 100% fact.
When the truth comes out, I suspect that there were lies on both sides, that the detainees have exaggerated the abuse that was suffered but that there were incidents of abuse.
Were there American citizens taken from American soil and placed in Guantanamo?
My bad. I thought that Padilla was. It turns out he was held without bond or trial and tortured in the US, not at Guanatanamo. I withdraw that accusation. There may well be US citizens being held at Gitmo, but if so they aren't public knowledge, at least as far as I know.
If they are supplying bomb making materials to suicide bombers, how should they be treated?
If you have someone that is sneaking around trying to strap on a bomb and position themselves in a crowd in order to kill as many innocent civilians as possible, The same rules do not apply. How do you suggest that they be handled if captured?
How should people who are dropping bombs on cities--"soft" aka civilian targets-- and not even having the courtesy to blow themselves up at the same time be treated. How should people whose lives are devoted to making bombs for these people and who spend many hours thinking long and hard about how to make the bombs do more damage be treated?
It is my understanding that many foreign nationals being held are eligible for release if their home country would only accept them and guarantee they would no longer be a threat to the US.
Anecdotally, at least one German citizen was held at Gitmo for several years after it was determined he was no threat and never had been, despite personal pleas from Kanzlerin Merkel to Bush. So while there may be people at Gitmo that, essentially, no one wants, that is not all that is going on.
For people that are scientists, you are very willing to accept that the reported torture is factual and 100% accurate. Where is the skepticism?
The ACLU has obtained a bunch of papers concerning torture at Gitmo under the FOIA. Link to records. Review them a bit and see if skepticism in this case isn't really denialism. I searched on autopsy results and found that in all cases I could get any information on, there was definite evidence of malpractice and neglect in every case and evidence of torture in a large percentage. And this was based on very incomplete records. The truth is probably far worse. On that background, I'm not inclined to give the US the benefit of the doubt.
Or take a look at these brief autopsy reports. Not mostly from Guantanamo, but all recounting deaths in US custody. And they are really stretching to call some of these deaths "natural". That's even assuming that the reports are accurate. So I guess I am giving the US military the benefit of the doubt: I'm assuming that they are too arrogant to think that they need to cover up their torture. Well, apparently they don't need to when even intelligent, sensible people like Bill don't mind if they use torture, as long as he can find a way to call it something else.
Even the Supreme Court had to agree to disagree in this 5-4 decision. I think it is time for me to call it quits on this subject. Thanks for the info, Dianne.
Bill: Before you quit I want to apologize for excessive snideness and undue personal attacks. I was feeling disgusted with the situation, the US, and humanity in general, but that was no reason to take it out on you personally.
That's okay Dianne. You are a passionate person and this is a volatile subject. I didn't take it personally. We have different views on this matter. It's okay to disagree.
This is an issue that is not going away any time soon. I just hope that the issue is getting this type of passionate discussion in our government. I can't remember if I actually posted this or just thought about it, but the older I get, the more I see gray where I used to see black and white. I don't know if this is a good thing or a bad thing, but just the way it is.
The default status granted by the Geneva Conventions is that of POW. That status can only be changed via the ruling of a "competent tribunal".
The kangaroo kourts the Bush administration has constituted are not "competent tribunals".
Article 102
A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed.