Who does the Bill of Rights cover?

This Week | 2 Dec 01 | Bob Barr

[H.Akston]

Bob Barr just said on Sam and Cokie's show that the Bill of Rights is part of the Constitution, and the Constitution covers "persons", not just citizens, and "the Bill of Rights applies to all persons on our soil."

[mrsmith]

"how in heaven's name can anyone accept Congress actually meeting and passing "resolutions" as a substitute for a delaration of war?"

I think you stated it best yourself: "Declaring war is a complex question".

Besides declaring war, congress also has the ability to enact specific legislation for the conduct of the tribunals for the terrorists- that's what irritates me so about their criticism of Bush, they could enact law (do their job) instead of criticizing Bush for using the general guidelines in the UCMJ! But that would be doing something constructive!

(I suspect you'll have some debate on Bush's acting under the UCMJ- but let's save it for another thread.

I been shopping and it wears me to a frazzle :-)

[A.J.Armitage]

You've gone beyond the pale.

[Polybius]

Civil court or military court--really makes no difference to me. Bottom line is, this is the equivalent of declaring a person guilty of murder (without trial) and then sending him straight to his sentencing hearing, imo.

So your position is that bringing someone to trial is equivalent to finding them guilty?

Cases are dismissed in civil Courts every day and Military Courts often rule "Not Guilty". Even in the Military Tribunals after World War II, "Not Guilty" verdicts were not uncommon.

[exodus]

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"...the sentiment of the Convention, as best we can determine from the limited notes of the proceedings, was that the potentially momentous consequences of initiating armed hostilities should be called up only by the concurrence of the President and both Houses of Congress..."

"...Although this change could be read to give Congress the mere formal function of recognizing a state of hostilities, in the context of the Convention proceedings it appears more likely the change was intended to insure that the President was empowered to repel sudden attacks1420 without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President..."
# 430 by Texasforever
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That's my understanding as well,
that Congress must pass a Declaration of War.

Having the President hold a press conference
and saying "We are at war" is not the same as a Declaration of War,
even if Congress doesn't contradict him.

Of course the President would be able to respond to an attack in an emergency, but we don't have an emergency today. A 3 month waiting period doesn't qualify as an emergency.

Roosevelt didn't have as many people killed at Pearl Harbor, and that was a military base. He got a Declaration of War the next day. We had 5000 civilians killed. Why is a Declaration of War too much to ask?

Tell you what.
Forget the Declaration of War for a moment.
How about the President declaring a State of Emergency?
That would give him war powers too.
Remember, we were afraid Clinton would invent some "emergency" and claim Emergency Powers? Let our Republican President claim his legitimate power. Without either a Congressional "Declaration of War" or a Presidential "State of Emergency," the new rules are a permanent part of our law. Either of the above would allow for temporary measures, rather than new laws setting permenent precedents restricting our freedom.

[UnChained]

The Bill of Rights is mainly a list of rights possesed by the people that the federal government is not to infringe.

We are on a slippery slope lately when the Bill of rights has become a list of privileges that the govermnment defines and enforces for our sakes. Freedom of the press prevents the government from shutting down an anti-establishment news operation. But should it be a federal crime if I violate someone's freedom of speech by smashing their printing press or stealing their newspapers? The goverment is not to safegaurd our freedoms against anyone BUT the government itself. Our rights are not given by the government, they predate the government.The right of someone to be secure in their persons and property is not a right GRANTED by the constitution. It is a right ACKNOWLEDGED as pre-existing the constitution.

The phrasing of the declaration states that "ALL men are endowed by their Creator with certain inalienable rights"

Yet...

Affirmative action is the bill of rights turned upside down and it certainly doesn't make sense to export it to the world.

Clearly in a time of war, it is appropriate for our government to deprive the enemy of "life, liberty and the pursuit of happiness without due process. In general though, the limits on our government's actions with regard to infringing on inalienable rights should be universal in scope. Of course if some tortuous reading of the bill of rights causes our government to enforce rights then that enforcement towards non citizens is as wrong as it is in the US. We cannot mandate freedom of religion in another country. The first amendment plainly says" CONGRESS shall make no law...

Conversely, it would be OK to use the lack of religious freedoms in other nations as a criteria to detrmine who our enemies are and who is supporting them since a country that executes people for converting from Islam is morally equivalent to a country that supports terrorists who kill US citizens because they are infidels.

Civil rights are human rights in another guise. I would not want our government abusing the human rights of anyone including non-citizens. We are the good guys.

[Texasforever]

How about the President declaring a State of Emergency? That would give him war powers too.

Bush did declare a national emergency...I think. I will do a bit more research before I state it as fact. Did you read the link I gave you on Hamilton? It is very interesting.

[Texasforever]

Having the President hold a press conference and saying "We are at war" is not the same as a Declaration of War, even if Congress doesn't contradict him.

No but the joint resolution was the working equivalent.

[Texasforever]

Here is the state of emergency:

Declaration of National Emergency by Reason Of Certain Terrorist Attacks
By the President of the United States of America
A Proclamation

     A national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.

     NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me as President by the Constitution and the laws of the United States, I hereby declare that the national emergency has existed since September 11, 2001, and, pursuant to the National Emergencies Act (50 U.S.C. 1601 et seq.), I intend to utilize the following statutes:  sections 123, 123a, 527, 2201(c), 12006, and 12302 of title 10, United States Code, and sections 331, 359, and 367 of title 14, United States Code.

     This proclamation immediately shall be published in the Federal Register or disseminated through the Emergency Federal Register, and transmitted to the Congress.

     This proclamation is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.

     IN WITNESS WHEREOF, I have hereunto set my hand this        fourteenth day of September, in the year of our Lord two thousand one, and of the Independence of the United States of America the two hundred and twenty-sixth.

                               GEORGE W. BUSH

[general_re]

So, my question to you, and to everyone, is - would everyone be more comfortable if the Bush Executive Order explicitly stated that tribunals applied only to non-resident non-citizens(e.g., aliens outside the territories and protectorates of the United States)?

Actually the EO does state that:

But, it really doesn't. Non-citizens, yes - it explicitly and clearly says that, I agree. But it isn't limited to non-resident non-citizens, which is my main objection to it. And I think I'm not entirely alone in that - clear that point up for me, and I (and perhaps some of the other posters) would support it all the way, unhesitatingly.

I much prefer the way that SCOTUS has delineated the constitutional protections available to non-citizens - if you're here, you have many of them; if you're somewhere else, you're on your own. And I think that this order blurs that line. I also think that if this order is subjected to a legal challenge, it's in real trouble in those grounds (and those grounds alone, IMO).

More's the pity.

[Luis Gonzalez]

"The INS could have yanked his green card..."

Come on ,show me the statute.

Some of his "on air guests" over the last couple of years were Janet Reno, John Ashcroft (post election), Jeb Bush. He was the person who received the message from President Bush and read it over the loudspeakers at the rally in Little Havana a few weeks ago.

I think that you are mistaken here, I have never seen any article in the constitution, State or Federal Law, INS regulation, Section in the US Code....name it, that says that non-citizens can be punished for freely expressing their opinion about politics, and/or political parties in the US.

People do not extend rights to other people, anymore than the government grants us rights.

How do you then explain Andrew Sullivan (Brit living in America) writing political editorials during the elections?

[FreeReign]

Thus the law is superior to what you and I might say is moral as individuals.

Quite incorrect.

It's easy to say "incorrect" to a statement without supplying the full context.

Full Context of what I said: Objective morality is superior to law. Unfortunately we cannot prove objective morality so we must rely on the rule of law based on what we the people say is moral. Thus the law is superior to what you and I might say is moral as individuals.

[BohDaThone]

They are not without "any" protection. If they are foreigners they can be expelled or deported, under whatever rules Congress makes, of general application. But they can't be thrown in jail, any more than an american journalist under the same circumstances.

[Texasforever]

I much prefer the way that SCOTUS has delineated the constitutional protections available to non-citizens - if you're here, you have many of them; if you're somewhere else, you're on your own. And I think that this order blurs that line. I also think that if this order is subjected to a legal challenge, it's in real trouble in those grounds (and those grounds alone, IMO).

It all depends on how you , the government or I define those that fall under the EO. If they are deemed combatants without uniform then they are subject to military justice under the laws of war, that is the definition Bush has used and that I agree with. If they are resident aliens that rob a liquor store they are common criminals subject to deportation if convicted. The EO expressly defines participation, planning, support or unreported foreknowledge of the Sept. 11 attack or membership in Al-Queda.

[Iwo Jima]

My dear Mrs.Smith -- first let me tell you how much it brightens my spirits just to see that I have a post from you. Secondly, I am sorry that you have been frazzled by shopping -- it tends to do the same to me, which is why I try to avoid it.

Yes, I do think that the declaration of war is a very weighty action, and that is why the Constitution allocated this power to Congress. If Congress could not convene for some reason and the country were under attack, I would fully support the President taking action to protect the country until Congress were in session. Even in today's environment, I can give the President enormous leeway in acting without Congress' express consent to address obvious dangers.

But when the Congress has actually met and has passed "resolutions" about the threat, I have to ask myself "why can't they just pass a declaration of war?" If it's war, then just tell us,and then we'll know.

I think that all of this quibbling about "is it war" or "is it not war" could easily be avoided if Congress said "It's war!"

Don't bother responding to my post unless you just really want to. I will just assign your silence to "shopper's exhaustion" (hope you got some great bargains!).

[exodus]

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To: exodus Even better read hamiltons own words Here
# 439 by Texasforever
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Thanks, Texasforever.

[Luis Gonzalez]

exodus, your posts have been great, I've enjoyed reading them.

Texas, good lord! We disagree a lot but when we agree!

Here's the last piece of the puzzle on this "undeclared" war.

The War Powers Act of 1973.

I am going to try to piece it all together if I can, I would apppreciate any help, or clarification.

The Constitution clearly identifies Congress as the arm of government reponsible for declaring war, the President is the Commander in Chief. As Commander in Chief, the President is reponsible for repelling attacks on our soil, and/or our people, in case of a direct attack, he can act without seeking permission from Congress.

In this particular case, seeing as to how there isn't a country (yet) that we can identify as the perpetrator of the actions on 9/11, this becomes truly a police action, the search and destruction/apprehension of those individuals responsible for the attack.

The president identified the network, informed Congress, explained that further attacks are expected, and received permission from Congress to use military force and destroy the ongoing threat that terrorists present to us. All this in accordance to the War Powers Act.

Once it was established that bin Laden was hiding in Afgahnistan, the president asked that he be extradited, they didn't, we warned them that we would consider them his allies, and we went to get him.

The last piece of the puzzle that I was missing Texas just provided, the Declaration of National Emergency.

One theory that I have as to why Congress did not declare war, is that once they do, I believe that the presiden't powers as wartime Commander in Chief, would negate the Congress' ability to control the "war" by means of funding or defunding it.

Just my two cents.

[Luis Gonzalez]

I don't understand what you are trying to say, the fact that other countries have less freedom than we do is no surprise to either you or me.

"If I have all these God given rights, how come I can't exercise them in other countries?"

Because all that governments can do is take rights from you, not give them to you.

[Texasforever]

One theory that I have as to why Congress did not declare war, is that once they do, I believe that the presiden't powers as wartime Commander in Chief, would negate the Congress' ability to control the "war" by means of funding or defunding it.

I am not sure that congress can do that even with the joint resolution. My feeble interpretation is that the POWER to declare war rests with the Congress. However; how, when, and in what form they decide to exercise that power is completely arbitrary. The Constitution only invests the power, not the requirement to use it or how to use it nor does it require them to use it. The joint resolution did not impose a time limit or reporting requirement for funding. As you said, the CIC has a constitutional REQUIREMENT to repel all foreign attacks. He has NO choice and the conduct of that action is his and his alone. The Congress has the OPTION of a formal declaration or some other means i.e. the joint resolution...to voice their support.

[Sandy]

So your position is that bringing someone to trial is equivalent to finding them guilty?

No, I'm not saying that about all trials. I'm saying that that's what I expect these tribunals are going to turn out to be. Simply, when government insists on doing things in secret, I don't trust them.

[Luis Gonzalez]

"The joint resolution did not impose a time limit or reporting requirement for funding."

The War Powers Act stipulates that the CiC is required to report to Congress on the status of the war.