The Corpse of Habeus

[blackshoe]

Mark Twain said it best: "Suppose I were a congressman. And suppose I were an idiot. But I repeat myself..." :)

[Al_U_Card]

I think it is perfectly clear what this Justice was saying - that the rule of law does not apply to those suspected of being terrorists.

 

Note the term....suspected....what ever happened to presumption of innocence and proof in a court of law?

 

 

Al you seem confused

 

If it is an American then we get full rights.

 

If it is a Canadian or about tar sands a few miles across the border...NO!

How we can make this clearer?

Please send us that oil now.....see we asked nicely. :)

If need be we can even pay in worthless American bucks. :P

Sadly, Mike, The Prescott Bush legacy has made those prognostications somewhat more ominous than ridiculous.

[PassedOut]

Maybe I was wrong about McCain.

 

Bill Curbing Terror Interrogators Is Sent to Bush, Who Has Vowed to Veto It

 

WASHINGTON — The Senate voted Wednesday to ban waterboarding and other harsh interrogation methods that have been used by the Central Intelligence Agency against high-level terrorism suspects. The vote, following House passage of the measure in December, set up a confrontation with President Bush, who has threatened to veto it.

 

The ban would limit all American interrogators to techniques permitted in the Army Field Manual on Interrogation, which prohibits the use of physical force. It is part of a broader intelligence authorization bill, which cleared the Senate by 51 to 45, with 5 Republicans joining 45 Democrats and 1 independent in favor.

 

The Senate action is the latest chapter in a long-running battle between the Democratic majority in Congress and the Bush administration over the treatment of detainees, an issue certain to play a role in the presidential election campaign.

 

The leading Republican presidential candidate, Senator John McCain of Arizona, a former prisoner of war who steadfastly opposes the use of torture, voted against the bill.

[jtfanclub]

The second statement says the 8th Amendment prohibits cruel and inhuman punishment for c-r-i-m-e-s, but for s-u-s-p-e-c-t-e-d terrorists it is totally fine. Also notice in this second statement there is no mention of location - he seems he thinks this practice is fine here in the U.S., as well.

 

Well, that's less nonsensical than what I thought he'd said previously.

 

Note that we've locked up reporters for indefinite periods for not telling us their sources, for example. The differences are....

 

1) The indefinite lockup is determined by a judge, not by a CIA agent or whomever. This gives some level of culpability.

 

2) The imprisonment is public information, which is crucial for an indefinite detention.

 

3) The person has the right to contest it in court, though it usually takes 6 months.

 

I think that, still, Scalia doesn't get it if the argument is what I think it is. However, I'd still have to read a paper by him on this before I'd really know his arguments. But he's not arguing 'outside the U.S.' or 'special powers against suspected terrorists'.

[grrigg]

Look, I am sure I am not the only one who knows that Scalia is a very strong believer in originalism (the Constitution only has its original meaning, which is the one that the founding fathers intended) and textualism (essentially look at the letter of the law and dont worry about intentions or the problems the law was trying to address).

 

While you may think this to be a messed up system of beliefs its at least logical. If you believe in the "living Constitution" that changes with times (there are many things that founding fathers couldnt even fathom happening) then the laws have little inherent meaning; every court reinterprets the same words again and again with dramatically different results (which has happened of course).

 

Since the Consitution is pretty vague on Supreme Court powers and the current strong power of Supreme Court stems more from Marbury v Madison than the actual letter of the Consitution Scalia probably (I cant be 100% sure) believes in somewhat narrow powers of the Supreme Court. All that he is saying that it is not within purview of the Supreme Court to decide on constitutionality of torture of foreign citizens on foreign soil. If you want a law against it, have Congress pass such a law. I do not see this as an illogical position. He does not condone torture, he just says that within the system as he sees it is the job of Congress to pass a law against it.

 

You can disagree, and feel that a little judicial activism is in order on such an important issue. But he believes in following the letter of the law and in his opinion regulation of such things as Guantanamo Bay is outside his power.

[jtfanclub]

Look, I am sure I am not the only one who knows that Scalia is a very strong believer in originalism (the Constitution only has its original meaning, which is the one that the founding fathers intended) and textualism (essentially look at the letter of the law and dont worry about intentions or the problems the law was trying to address).

.

.

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All that he is saying that it is not within purview of the Supreme Court to decide on constitutionality of torture of foreign citizens on foreign soil.

No originalist is going to care whose soil it's on. There is nothing in the Constitution (again, possibly excluding the 3rd Amendment) which states or implies anything is based on where the person happens to be at the moment.

 

For example, if you're an American citizen, you can still vote even if at the moment you happen to be visiting foreign soil.

[Al_U_Card]

Interesting how the regime uses the "providing freedom and democracy" to the Iraqi peoples as a justification for invading but when it comes to providing those same values to others......just your basic two-faced lying bastards I suppose...

[Winstonm]

Look, I am sure I am not the only one who knows that Scalia is a very strong believer in originalism (the Constitution only has its original meaning, which is the one that the founding fathers intended) and textualism (essentially look at the letter of the law and dont worry about intentions or the problems the law was trying to address).

 

While you may think this to be a messed up system of beliefs its at least logical. If you believe in the "living Constitution" that changes with times (there are many things that founding fathers couldnt even fathom happening) then the laws have little inherent meaning; every court reinterprets the same words again and again with dramatically different results (which has happened of course).

 

Since the Consitution is pretty vague on Supreme Court powers and the current strong power of Supreme Court stems more from Marbury v Madison than the actual letter of the Consitution Scalia probably (I cant be 100% sure) believes in somewhat narrow powers of the Supreme Court. All that he is saying that it is not within purview of the Supreme Court to decide on constitutionality of torture of foreign citizens on foreign soil. If you want a law against it, have Congress pass such a law. I do not see this as an illogical position. He does not condone torture, he just says that within the system as he sees it is the job of Congress to pass a law against it.

 

You can disagree, and feel that a little judicial activism is in order on such an important issue. But he believes in following the letter of the law and in his opinion regulation of such things as Guantanamo Bay is outside his power.

I appreciate your point of view and possibly you are right, but from reading the statement is appears to me to be otherwise.

 

"In his view, Scalia said that while the 8th Amendment would prohibit locking up someone indefinitely as punishment for a crime, for example, the CIA or military would be perfectly justified keeping a suspected insurgent or member of al Qaeda imprisoned forever if the detainee refused to answer questions."

 

The phrase "the CIA or military would be perfectly justified..." indicates to me legality of actions. There would be no need to "justify" an action if there were no prohibition. You don't have to justify breathing, for example; however, you do have to justify the reason for stopping someone else from breathing.

 

This phrase is toublesome, also: "suspected insurgent". One thing lawyers and judges understand is that language has meaning. Here is the word insurgent as defined by Webster's: In`sur´gent

a. 1. Rising in opposition to civil or political authority, or against an established government; insubordinate; rebellious.

n. 1. A person who rises in revolt against civil authority or an established government; one who openly and actively resists the execution of laws; a rebel.

 

In the past, the mild form of insurgency has been known as civil disobedience. It is not unrealistic to read the words then that the CIA or the military has the right to jail indefinately anyone suspected of civil disobedience.

 

The fact he said nothing about habeus corpus or due process is chilling, IMO. What is the purpose of talking about the 8th Amendment and somehow using its inappropriatness to justify failure to follow habeus corpus and due process?

[Al_U_Card]

Once you change the all to some in "All men are created equal...." it is already too late.

[finally17]

Look, I am sure I am not the only one who knows that Scalia is a very strong believer in originalism (the Constitution only has its original meaning, which is the one that the founding fathers intended) and textualism (essentially look at the letter of the law and dont worry about intentions or the problems the law was trying to address).

.

.

.

All that he is saying that it is not within purview of the Supreme Court to decide on constitutionality of torture of foreign citizens on foreign soil.

No originalist is going to care whose soil it's on. There is nothing in the Constitution (again, possibly excluding the 3rd Amendment) which states or implies anything is based on where the person happens to be at the moment.

 

For example, if you're an American citizen, you can still vote even if at the moment you happen to be visiting foreign soil.

You've said it twice now, but I disagree with your argument. The preamble reads: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

 

Ie this is the law of the land for this land.

 

Furthermore, there's a perfectly reasonable assumption that when you cross over into some other sovereign region, you are subject to their laws. So obvious that 200+ years later it's the way all nations treat each other and no one bothered to put it in the Constitution. And in fact, this is exactly how the State Department deals with issues of American citizens breaking laws in other lands. You go to Singapore and throw a gum-wrapper, or whatever it was that kid did, you get caned. Maybe if the punishment is, from a "human rights" perspective, extreme, they do some lobbying of your case, but they don't knock down the doors and rescue you.

 

We don't respect other nation's laws being enforced on our soil, and we don't enforce our laws on another's soil. These would be denials of sovereignty, regardless of who is doing the law-breaking. Your voting example is not germane. When you travel, you place yourself under the laws of whatever region you're in, but you don't give up citizenship. Heck, this is even the way we act inside the US, when traveling or moving from one municipality or state to another.

 

HOWEVER, these are situations of private citizens traveling abroad (even sailors, on shore leave, qualify as such). I think it's perfectly reasonable to argue that when one travels abroad acting under the authority of the United States government (be he sailor or soldier or CIA agent), one should be subject to the same laws that authority is subject to, an argument that was already made above.

 

But this is the relevant argument, not the one you're making, that the Constitution doesn't bother to specify.

[finally17]

Once you change the all to some in "All men are created equal...." it is already too late.

While you're right, it is worth noting that while the Declaration attempts to argue for a natural authority and certain greater truths, it has never had any legal authority. Perhaps unfortunately, no US legal document has ever made this concept the law of the land.

 

(we act like it is, but there are all kinds of legal limitations: age, citizenship status, commission of felonious acts, etc)

[kenberg]

I think that relying on the Constitution to prevent torture is a bad idea, just as I think that the argument that torture provides unreliable information is a bad argument. Far better is to say: We are not going to do that. If the information is useful we still won't do it. If the Constitution does not specifically prohibit it, we aren't going to do it. We are not going to torture people. We are not going to send them to other countries so that they can be tortured there.

 

Such a decision could well have consequences and we should be prepared to accept them, but if we so choose then we can insist and we can provide whatever law is needed to back it up.

 

Relying on the Constitution absolves us of responsibility. It then becomes a matter of whether James Madison did or did not approve of torture. No. If we do torture, it is our responsibility. If we do not, and if people die from an attack that could have been prevented, that is also our responsibility. Our choice, not Madison's.

 

Me, I'll follow McCain's lead and go the non-torture route. Basically, I don't want my country doing what I would not have the stomach to do. But I do think this choice could have consequences. If torture never produced useful information, the practice would have died out.

[Al_U_Card]

I think that relying on the Constitution to prevent torture is a bad idea, just as I think that the argument that torture provides unreliable information is a bad argument.

 

But I do think this choice could have consequences. If torture never produced useful information, the practice would have died out.

The stupid man's reliance on force rather than intellect to deduce and understand what is happening. Torture is easy and effective.....and oh so human. When will we go beyond our failings and assume our eventual humanity?

 

If this is it, then we have failed miserably and deserve to go the way of the dinosaurs.

[Al_U_Card]

Once you change the all to some in "All men are created equal...." it is already too late.

While you're right, it is worth noting that while the Declaration attempts to argue for a natural authority and certain greater truths, it has never had any legal authority. Perhaps unfortunately, no US legal document has ever made this concept the law of the land.

 

(we act like it is, but there are all kinds of legal limitations: age, citizenship status, commission of felonious acts, etc)

I heartily agree and see that what is sauce for the goose is good for the gander. They should just say that they are rapacious and want the money and oil in Iraq at whatever cost in human lives and be done with it......but no, they hide behind the curtain of democratizing the world. Not in this life, or any other, will we see these ambulatory, bipedal monsters do anything but feign their humanity.

[jtfanclub]

You go to Singapore and throw a gum-wrapper, or whatever it was that kid did, you get caned.

 

What does that have to do anything? Scalia is not saying that it's OK to torture prisoners in Cuba because the Cubans are doing the toruturing. They aren't.

 

We are talking about U.S. authority here.

 

We don't respect other nation's laws being enforced on our soil, and we don't enforce our laws on another's soil.

 

Of course we do. Manuel Noriega is in a Florida prison right now. What crime is he accused of committing on our soil? What did Jose Padilla do on our soil?

 

I have the plans for a computer system, which are legal to carry into the U.K. but not to Iran. I fly to the U.K., then I fly to Iran, where I sell the plans for big bucks. Then I fly home. I committed no crime on U.S. soil. Do you really think I can't be prosecuted? How about if I fly to Bosnia and kill a few U.S. soldiers and come back. Can I still be prosecuted in the U.S.?

 

Or to go back to the Revolutionary War period, there were laws against selling firearms to Indians. If somebody took a load of firearms over to Indian Territory (technically owned by Spain, but at any rate not owned by the U.S.) sold them and came back, do you he couldn't be prosecuted because, hey, he was on Indian Territory when he commited those crimes? How about if the sheriff went into Indian territory to catch him in the act, and dragged him back to the U.S. for trial. Now do you think that he's innocent?

 

A Constitution governs the government. The U.S. Constitution says what the United States government can and cannot do, and clearly the government of the United States extends past the borders of the United States. After all, that's why we have treaties. There's nothing in there that states or implies that the U.S. government can do whatever it wants outside of the United States, and considering that a majority of the U.S. border was basically lawless, that cannot have been an accident.

[PassedOut]

Far better is to say: We are not going to do that. If the information is useful we still won't do it. If the Constitution does not specifically prohibit it, we aren't going to do it. We are not going to torture people. We are not going to send them to other countries so that they can be tortured there.

 

Such a decision could well have consequences and we should be prepared to accept them, but if we so choose then we can insist and we can provide whatever law is needed to back it up.

Very well said, in my opinion.

 

Rather than using force and bullying to get our way, we should focus on being the best nation we can possibly be. Over time (quite a long time, I suppose, given the actions of the Bush crew), we will gain some respect.

 

A strong defense is fine and needed. But invading other countries under false pretenses, torturing prisoners, and the like, undermines the very basis of our existence as a nation.

[TimG]

Me, I'll follow McCain's lead and go the non-torture route. Basically, I don't want my country doing what I would not have the stomach to do. But I do think this choice could have consequences. If torture never produced useful information, the practice would have died out.

Didn't McCain recently vote against a bill that would have put an end to water boarding by the US? I'm guessing I read that in this forum, so maybe the information isn't so reliable.

[finally17]

What does that have to do anything? Scalia is not saying that it's OK to torture prisoners in Cuba because the Cubans are doing the toruturing. They aren't.

 

We are talking about U.S. authority here.

 

I know. It was just a random example of the argument that "our laws are applicable here, their's there."

 

Of course we do.  Manuel Noriega is in a Florida prison right now.  What crime is he accused of committing on our soil?  What did Jose Padilla do on our soil?

 

Noriega was convicted of drug-trafficking and racketeering, crimes that I am sure happened on our soil whether he was here or not. I don't know the particulars that allowed the State Dept. to believe it was our right to try him. As for Padilla, I know absolutely no particulars either, except that I note that he was in fact arrested on US soil. If nothing else, he is lawfully a prisoner of war as well (this is supposedly his official status if net sources can be believed), having declared war against the US and having ordered acts of warfare.

 

Anyway, as for the important part, we seem to agree. You appear to believe that the government and agents of the government, when acting as said agents, must be bound by US law wherever they are. I basically said that in my last paragraph.

[jtfanclub]

Anyway, as for the important part, we seem to agree. You appear to believe that the government and agents of the government, when acting as said agents, must be bound by US law wherever they are. I basically said that in my last paragraph.

If by that you mean that agents of the U.S. government must grant Constitutional rights to those people in their custody regardless of location, I agree with you. If what you're saying is that only agents of the U.S. government can be tried in the U.S. for actions not performed on U.S. soil, then I disagree.

 

Just a question of what you mean by 'law', I guess.

[grrigg]

Actually, I bet that Scalia would argue that its a big plus that we are a nation of laws and we dont have people randomly forcing their morality upon people. Whether those forcing it are activist judges or activist clerics. The job of the courts is to interpret the existing laws, not make new ones. We have a legislative branch, it is their job to pass new laws. However, the Congress has repeatedly balked at passing an anti-torture bill. They are bothered by Bush's platitudes about national security. And frankly I am not sure that the American people feel overwhelmingly on this issue or maybe the Congress wouldnt be so scared.

[mycroft]

What bothers me - especially about Guantanamo Bay - is the gaming. Deliberate, clearly stated, heartless and unethical gaming of the United States "rule of law".

 

It's not American soil, we have the base on lease from the Cuban Government. Never mind that they don't want us there, and won't cash the cheques. But it's staffed by Americans, and there's no non-National, non-prisoner on base, except when journalists or the Red Cross come. And it's under American jurisdiction - at least try doing something the U.S. doesn't want you to do. But it's not under American jurisdiction, at least for the prisoners, because it's not part of the U.S.

 

The same arguments go for extraordinary rendition, "torture", and everything else in this shoddy display of "we don't care, we don't have to, we're the Telephone Company^W^W Only Superpower" neo-imperialism masquerading as the War on Terror.

 

And this walking every single loophole, including a few they've had to cut out on the fly, is supposed to make us happy with or proud of the Land of the Free how, exactly?

 

Michael.

[finally17]

Anyway, as for the important part, we seem to agree.  You appear to believe that the government and agents of the government, when acting as said agents, must be bound by US law wherever they are.  I basically said that in my last paragraph.

If by that you mean that agents of the U.S. government must grant Constitutional rights to those people in their custody regardless of location, I agree with you. If what you're saying is that only agents of the U.S. government can be tried in the U.S. for actions not performed on U.S. soil, then I disagree.

 

Just a question of what you mean by 'law', I guess.

I'm loath to say without careful individual consideration that ALL constitutional rights should be extended to those in the custody of agents of the US. "Cruel and unusual punishment," yes, it extends from a view of basic rights of humanity; "self-recrimination" yes, which at least serves to prevent torture; "habeas corpus" yes--but this clearly needs careful definition dependent upon situation. To quote from wiki "a writ of habeas corpus ad subjiciendum is a summons ... demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person."

What constitutes proof and lawful authority can not possibly be equal in all situations.

 

...Off the top of my head I'm not sure what else in the Constitution speaks to the particular issues of the thread. But there might be other things that I'm unwilling to extend, and I'm not going to do a careful study of the amendments to check...

 

As for the second part, I'm definitely saying "should," ie only agents of the government should be tried in the US for actions outside of the US ... and I believe it is the case that it is "can" (note that I submitted that Noriega was tried for crimes on US soil whether he was here or not...). Anything else is a violation of sovereignty I believe. But IANAL to know and understand the legal tricks the State Dept. actually pulls.

[finally17]

What bothers me - especially about Guantanamo Bay - is the gaming. Deliberate, clearly stated, heartless and unethical gaming of the United States "rule of law".

True dat.

[jtfanclub]

Anything else is a violation of sovereignty I believe.

I have no idea what you mean by a violation of sovereignty. I don't believe it's a legal concept.

 

We have treaties with other nations, and those have a power equal to the Constitution. If we don't have a treaty with another nation, there is no legal concept of 'sovereignty'. We couldn't care less if you violate their laws or not, and we don't care if our agents violate their laws. Pretty much, we expect that our laws extend to the entire planet where we don't have a treaty to indicate otherwise, and we also expect other nations to feel the same way.

 

Here's a simple example: Piracy. An American ship gets attacked by pirates in international waters. Do you think that no American law has been broken? Do you think those pirates cannot be tried in an Amercian court? The history of trying and hanging pirates predates the Constitution, and any semblence of international law.

 

The concept that laws extend past borders is a pretty old one.

[Winstonm]

A Constitution governs the government. The U.S. Constitution says what the United States government can and cannot do, and clearly the government of the United States extends past the borders of the United States.

 

jtfanclub's statement is well said and the heart of the matter to me.

 

The Constitution limits the rights of the government. An actor for the government, be it a single CIA officer or an Ambassador, is still constrained by the limitation of governmental rights specified by the Constitution, and these specifications extend beyond the national borders. The entire argument against the 8th Amendment is ludicrous when it is the 5th Amendment that applies:

 

"nor be deprived of life, liberty, or property, without due process of law"

 

A government at its basis has only one single power - only one - and that is it has the power to deprive liberty. The U.S. Constitution has no other real meaning but to limit this power.

 

See, this isn't really about the threat of terrorists or insurgents or any other outside threat. The truly significant threat has been and always will be the threat of an unrestrained and all-powerful government.