Posted on 12/04/2001 9:28:08 PM PST by betty boop
Lately, a whole lot of people around here seem to be exercised over the issue of whether the Constitution applies to "citizens only," or to the more generic category, "people." Must have been something President Bush or Attorney General Ashcroft said….
Well, I offered the result of my humble attempt at rational analysis, with the amusing result (hey, even I find it funny) of being screamed at and chastised, in 36-point type, for my dim-witted ignorance; and was in so many words accused of being a dunderhead, a horse's patoot, a "dunce." (Hey, maybe it's all true. :^) )
But I wasn't the only one to receive what passes for "civil treatment" in the now-typical style of FR discourse. An unfortunate colleague was taken to task for reaching conclusions similar to mine. He was accused of being a "cretin with an IQ of dog slobber," someone so dim he couldn't even "tell what planet [he] was on." Then the unkindest cut of all: "It wouldn't be fair to hold you to the same standards I would somebody half as smart as Al Gore."
Oh, pul-eeze. Can't we find a more dignified way to disagree with one another?
By the way, the folks advancing these judgments are of the party maintaining that unalienable human rights pertain to persons, not to citizens as such. What these seemingly crazed individuals fail to appreciate, however, is that I do not disagree with this conclusion. And neither, I suspect, does my much-abused colleague.
Still, there is the appearance of a preponderant majority of opinion on this question at FR, judging from the replies I've seen; and their collective finding contradicts the finding of the tiny dissenting opinion seemingly represented only by my colleague and me.
Now if majority opinion were all that's needed to establish truth, then we could all just go home now and get a good night's sleep. (If this "test of truth" satisfies you, dear reader, stop reading immediately and find something better to do with your life and time, because you're wasting both here.)
But I wouldn't be able to sleep at all, under such conditions. The idea that truth rests on majoritarian opinion is the very foundation of popular or mass democracy.
BUT -- our Founders gave us a republic. When the lady asked Benjamin Franklin what the Framers had wrought - in secret council - during that sweltering summer in Philadelphia, he replied: "A republic…if you can keep it." It seems to me there is no way you can keep a republic if your standard of truth is the Public Opinion Poll.
So may we return to the merits of the case, and let each person make his own judgment as he or she will?
One of my correspondents takes what I understand as a "negative reading" of the Bill of Rights ("BoR"). I don't disagree with him on this point: Clearly, the BoR operates as a constraint on the federal government, prohibiting it to interfere in certain areas of personal autonomy (which in the view of this writer, are certain divinely-constituted inalienable rights vested in all human persons qua persons, be they citizens of the United States or not) -- without due process of law.
I'm afraid we can't just dispense with the latter, this idea of "due process," just wish it away -- because it's fundamental to the concept of ordered liberty - which is what a constitutional republic is all about.
If I might digress for just a moment: This whole idea of God-given (or "innate" or "natural") human rights that governments are prohibited to violate is the distinctive, uniquely American contribution to the theory of just political order -- which is a very ancient problem.
This is an understanding wholly unprecedented in human history, in that Americans have actually tried to realize the theory in actual practice. This "theory" extends the idea of innate human liberty and personal sovereignty to all persons, everywhere. And the Americans have the sheer temerity to make precisely this insight the very foundation of their rule of law.
BUT - that is not the same thing as saying that the U.S. Constitution applies to anyone, living anywhere. It has been consciously, deliberately constituted by a specific people, for the benefit of a specific people. It is definitely not the same philosophy that has been adumbrated and "officialized" by the United Nations: Compare the U.S. Constitution with the U.N. Declaration of Human Rights. Then judge for yourself: Which of these rival conceptions most pertains to the way real human beings actually live their lives: In families, communities, states/provinces, and sovereign nations?
Or do people really live, after all, according to the U.N. stereotype: according to some "universal pattern" as conceived and sanctioned by some self-selected "expert class" in pursuit of high positions of (global) power and authority in a "blessed" institution - even if it means that the entire idea of national (not to mention personal) sovereignty must be crushed under the boot in order that their aims may be achieved?
No wonder dictators and would-be dictators alike loathe us - and are now trying to defeat us: They detest the unique American idea that American diplomats carry and defend before "the council of nations." I bet the U.N. especially hates that, as a challenge and rebuke to its own putative "authority"….
But this is the legacy we Americans historically have been trying, in times of peace, and doubly in times of war (when America is fatally threatened), to hand down to our children and successors. That is what the "American Experiment" (contra the French debacle in a similar attempt a couple hundred years ago) is all about. It must trouble the likes of Taliban, PRC, et al., to no end that Americans continue to resonate to precisely that understanding….)
But, given this most basic of uniquely American understandings, my friend in "the opposition," by arguing that the federal government is so stripped of power and authority by the BoR with respect to persons (be they citizens or non-citizens) that it is prohibited from exercising its constitutional authority, nay, its duty, to prosecute its own delegated powers in wartime, for the sake of the defense of the very people it represents, is a piece of reasoning I just don't get. Some very wise justice of the Supreme Court once said: "The Constitution is not a suicide pact." (Been trying to track down my source here, to no avail so far. Still searching….)
Then another person weighed in, and said that the Supreme Court held that during times of war, belligerents can be "disposed of by the Executive branch with no recourse to the Judicial branch…. The distinction is NOT between 'citizen' and 'non-citizen,' but between 'belligerents' and 'civilians.'" Then he noted that, before the Executive is allowed to do anything on its own authority (i.e., without recourse to the courts), Congress must first declare war.
To which I would reply: So true, my friend.
But exactly when did you expect that Tom Daschle, Harry Reid, Charles Schumer, Hillary Clinton, Barbara Boxer, Dianne Feinstein, Ted Kennedy, John Kerry, Chris Dodd, Evan Bayh, Jon Edwards, not to mention the What's-Her-Name senator from Missouri who got the job because her husband died in a plane crash (vastly aided by simply staggering voter fraud in the process) et al., would agree to "do the right thing for America" so to make such a declaration? (These people think their own sacred political futures depend on not playing along with Dubya. War to them is a mere inconvenience, not a reason to get really exercised. As long as "Plan A" still goes forward full-steam, they don't care about the little "inconveniences" that get in the way -- like full-scale, declared war on American soil with upwards of almost 5,000 civilians dead -- so far.)
A formal congressional declaration of war - that is, congressional acknowledgment of the mere state of facts in which the American people now finds itself and must LIVE through, now and for the foreseeable future -- seems to me to be the very least anyone can reasonably expect, nay, DEMAND, from their elected public officials.
If this crowd doesn't get it, then I think we Americans ought to fire the whole gang, and hire a whole new bunch - and in doing so (hopefully) manage to clarify the real, objective situation that United States now faces against implacable foes, foreign and domestic. Constitutionally speaking. (But don't hold your breath waiting for the answer, kids: These vermin give every indication of determination to stick around for the foreseeable future - and then some… They will be "our masters" YET. [If only in their dreams…].)
I just hope that the people who think they're upholding and defending the Constitution (even a constitution castrated by the radical individualists out there) acquire some "survival skills" sometime soon. And start acting like they really understand what is at stake in this war - a war implacably waged, without remorse, against "non-combatants" -- according to the taxonomy of my "friend in the opposition."
But it's late, and "beddy-bye time" for me right about now. I hope to hear from folks who have something to say on this subject soon. Thus to continue this discussion along lines relevant to all my correspondents, pro and con. (This is, after all, a public discussion, not a "tutorial.") Meanwhile, all my best to all - bb.
And more came out of that trial. The CIA testified it could tap any call Bin Laden made on a cell phone. Shortly thereafter, Bin Laden gave up using cell phones for good.
I'd be most interested, Mr. Gonzalez, if you could mutter more than a "humma humma" over the fact that the liberal application of the Bill of Rights that you are advocating is the kind of thing that can help a US arch-enemy destroy the WTCs. The 6th Amendment required this trial to be public, for him to have a lawyer who managed to wrench out national security secrets from the system, and for our enemy to hear everything including our advice on how to do it better the next time. This all happened under the Clinton administration. He should have declared a state of emergency back then when the terrorists bombed our embassies in Africa.
Bush is trying to prevent the same thing from happening again with these tribunals, and people who try to defend him get accused of being stupid!!! It's an upside down world.
If you don't want to pay those taxes, then don't expect the system to protect your rights. Buy or make your own gun, renounce your citizenship, and protect your God-given rights yourself. You don't have to be "of the United States" if you don't want to, and we wouldn't then have to protect you with our system, if you're on our soil. In fact, the US Marshals could (without due process) deny your liberty to stay here, and escort you right out, like those Chinese reporters who tried to take advantage of our 1st Amendment right to express joy, when they saw the WTC collapse.
The Bill of Rights does not provide protection (cover) from our Government to everyone on our soil, regardless of citizenship. Barr (and you) is (are) wrong.
Continuuing states of emergency have kept us on a false war-footing and has "excused" a variety of abuses over the years, and no president has any intention of giving up those dictatorial powers, nor will they ever "come clean" on what's going on with them. It goes back to when the people of this nation became collateral for debts, so-called "debts" that were artifically induced by *some*.
Way too complicated for a single post, but that's sort of a quick gist of it.
What's going on now is really nothing new, he's just making it official that from here on out any pretense of civilian constitutional law is suspended for the duration, the duration publically identified by bush and cheney to be generations long. Perpetutity in other words. All they are doing is saying it outloud in a clearer but still obfuscated fashion. And this "message" is being purposely dumbed down to the professional advertisers 12 year old level of the US "norm", about the same as most speeches out of washington.
Posted by H.Akston.
Now, quit tippy toeing about that ridiculous statement, to have rights, one must pay taxes according to you...does your buddy "WFB" agree with you.
"You don't believe that. Neither did many Clinton voters"
I don't know what Clinton voters think, I do know that you, like Bill, are conducting a garage sale on human and civil rights. Pay some taxes, get some rights...your words, not mine.
Why will you not acknowledge that you said that?
Embarrased?
"as WFB said"
I read that WFB piece, maybe you better go back and read it again.
"There was a law passed making Indians citizens."
Oh! So, you knew that and yet you said this: "I'm not even sure that Indians are covered by the Bill of Rights, unless it's specifically stated so in some bilateral treaty."
So, somehow now you have decided that even some citizens are not "covered" by the Bill of Rights?
What next Hugh, Catholics are not covered?
"Citizens' rights are superior to non-citizens"
Hmmm....a citizen can buy a bigger gun than a non-citizen? Can a citizen speak with more freedom than a non-citizen? Can a citizen have more Liberty than a non-citizen? Just exactly WHERE in the constitution does it say that? Or anywhere for that matter? Can you show me?
"Now where are you going to find an impartial jury in New York to try Osama"
You claim that citizens' rights are superior to non-citizen rights...is that how we found an impartial jury to try Tim McVeigh? His rights as a citizen guaranteed him a trial by his peers? So then, if the people who perpetrated the attacks on 9/11 had been American, they would deserve a trial by jury, and we would have found an impartial set of people to sit and hear the case?
I am a proponent of the military tribunals, all my posts have been supportive of that, but as I become aware of your problem with reading comprehension (eg: your WFB article) I realize that I must spell that out to you.
"our sacred 6th Amendment protections to that piece of human debris"
Not so sacred if you are willing to violate them.
If Osama bets brought to the US, he will face a military tribunal, that is what you seem to support. That means that even YOU realize that he has rights here! Otherwise, you would just simply want him brought over to be summarily executed without trial.
You are a desperate man, grabbing at any piece of debris that floats by to save yourself from drowning. But I will not allow you to lie.
Our argument here is that you claim that the Bill of Rights only "covers" people "of the United States"...whatever that means, and that people need to pay taxes to have those rights. I have posted your words to that effect several times.
Now, all you have to do is try to support your lie that I advocate open trial by jury of Usama bin Laden, I support military tribunals, which is WHY I posted the articles by Dean, and Rinquist (they have a lot of big words, you may need to get some help reading them), but the very fact that President Bush has seen need to issue an EO to make military tribunals for accused terrorists happen, is an acknowledgement that those rights exists for foreign nationals in the US...otherwise, why issue the EO?
"That's about the most liberal thing I've ever heard...- does he (Barr) want to extend American rights to people who don't pay American taxes?? Posted by H.Akston
No Hugh, THAT is the most liberal thing I have ever read.
America according to H.Akston: "You pay your taxes, the government gives you your rights."
So then, Bill Gates has way more rights than either one of us?
Hey! I have an idea! Why sell rights to citizens? I mean, how much money can there be in that? We could sell secrets to the Chinese! I like your ideas Hugh!
Lapidary, beckett. You make my points with far greater concision and clarity than I did. Thank you! All my best -- bb.
The EO doesn't change any law, or create or deny any rights- that would be illegal.
It provides a mechanism and definition for implementation of current law.
( My comment is not to the point of your basic argument, but needed to be said IMHO.)
That is not what WFB said.
Quote me where he says their "rights" are inferior.
Rather, he said their PRIVILEGES and DUTIES.
Get out of here, H.Askton. You've lost all credibility.
"How our elaborate "discovery" procedures can destroy our ability to gather intelligence on terrorists, because intelligence sources dry up when they know that what they say can be revealed in court and broadcast around the world by CNN?
There is no point in the critics of military tribunals wrapping themselves in the Constitution, which deals with the rights of American citizens. Nobody is talking about trying American civilians in military courts.
Those who like to think of themselves as citizens of the world may be offended by the distinction between American citizens and others. Those who want all our rights extended even to our enemies do not understand that survival is the number one right. Without survival, all your other rights don't amount to a hill of beans. As Supreme Court Justice Robert Jackson once put it: "The Constitution of the United States is not a suicide pact."
[there's your quotation, Betty!]
The common sense of the great majority of the American people has thus far prevailed, but the political snipers and ideological underminers carry on in the media, in academia and in Congress."[...And on freerepublic.com]--Thomas Sowell
http://www.townhall.com/columnists/stevechapman/printsc20011206.shtml
"By analogy, al Qaeda terrorists caught in Afghanistan, or even on American soil, could rightfully be imprisoned without trial for as long as this war continues, even for decades. We have no obligation to free them so they can go back to trying to kill us, and we don't have to prove their guilt beyond a reasonable doubt before we lock them up." --Steve Chapman
I sure am glad I'm on Thomas Sowell's Steve Chapman's William F Buckley's, and George Bush's side and not on Pat Leahy's side.
Find that impartial jury in New York for Osama and our imprisoned Al-Qaeda resident aliens yet?
Are the aforementioned Al-Qaeda's getting a speedy enough trial for you? Have you made up your "Impeach Bush" sign yet and stormed 1600 P. Ave?
Misstates the opposition’s position and the EO. The EO applies to ALL terrorists ANYWHERE and ALL those who harbor them. It also includes folks who are not terrorists at all. Indeed, if you have at any time ever been a member of al-Quaeda, you are within the EO’s jurisdiction. If you have ever been the landlord of a former al-Quaeda member, you are within the jurisdiction.
(I would also note that Dean assumes at the outset it is possible to obtain “justice” by military trials.)
The critics suggest that the constitutional standards of our criminal justice system should be applied in a military proceeding for war criminals – but that makes little sense.
Wrong. The critics suggest there should not be a military proceeding in the first place.
Many of these critics earlier called for a military response to terrorism. Now they want to demilitarize it.
Irrelevant. For the record, however, I am a critic and I never called for a military response.
In effect, what the critics of military tribunals would have the President do is turn enemy belligerents over to civilian law enforcement authorities for prosecution. To do so, however, would not only be unprecedented, but would set a horrifically bad precedent.
In fact, “enemy belligerents” are considered POWs. Their fate is decided under the UCMJ -- not purely executive military tribunals. Purely executive military tribunals may only be used, according to the S.C., for unlawful enemy belligerents.
America Is At War
Against what country?
Wars, including this war, are fought under well-understood rules. They don't include providing Miranda warnings when capturing an enemy, nor employing the legal niceties of the Federal Rules of Criminal Procedure when punishing them.
Irrelevant.
Nobody claims “Miranda warnings” are required on the battlefield. He’s battling a strawman.
Once captured, however, “lawful enemy belligerents” are subject to a whole set of rules set forth in the UCMJ and international treaty. None of them are subject to solely executive military tribunals.
In any case, keep in mind that the EO applies to people that are in no way connected to Afghanistan, the Taliban, or al Queada.
Congress has formally declared war only four times: in 1812 against Britain, in 1898 against Spain, and for both the First and Second World Wars. Nonetheless, the United States is engaged in the legal equivalent of a formally declared war, as it did in Korea, Vietnam and Kuwait.
Looks like your man disagrees with you regarding whether or not we are in a state of war.
The mere use of the US Military abroad does not constitute a “War”. A “War” is a legal term with real legal consequences. The actions in Korea, Vietnam, etc. are NOT the “legal equivalents” of a declared war; they may be the “practical equivalents”, but not “legal”.
And while no declaration of war issued, Congress did authorize President Bush "to use all necessary force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." By doing so, Congress provided the legal and practical equivalent of a formal declaration of war.
Once again, does the mere use of military force constitute “War”?
Of course not.
Did we declare war on Haiti, Somalia, Yugoslavia, Colombia, etc., etc.?
I’m not going to address this further. There have only been four declarations of war in this country’s history. John Dean states as much.
In all past American wars, our law enforcement officers have turned over enemy belligerents to military authorities. Critics of military tribunals have not explained why it should be different -- or the reverse -- this time.
Apples and oranges.
Once again, keep in mind who the EO covers: people who have NOTHING whatsoever to do with Afghanistan, the Taliban, or al-Quaida.
As the Supreme Court stated in Ex Parte Quirin, "military tribunals … are not courts in the sense of the Judiciary Article [of the Constitution]." Rather, they are the military's administrative bodies to determine the guilt of declared enemies, and pass judgment.
There’s that word again. Who is the declared enemy?
“Terrorists”?
Ha. That’s no different than declaring war on “The Enemy -- whoever or wherever he is.”
The 20th Century has had it’s fair share of regimes in which a perpetual state of war existed against the “enemy of the State.”
China, Cambodia, the USSR, E. Germany, Vietnam, Argentina, Cuba, etc...
Indeed, if it covers all terrorists, why single out al Qaeda, and what is the penalty for being a member, since there is no law on point. But if the order, in fact, covers all terrorists I understand why civil libertarians are distressed.
Ringing support....
Read the EO.
Because these military tribunals are not courts, and because they have been used since before the Constitution was adopted, there are unresolved issues relating to the application of the Constitution. In Quirin the Court noted, "We cannot say that Congress in preparing the Fifth and Sixth Amendments intended to extend trial by jury to cases of alien or citizen offenders against the law of war otherwise triable by military commission," even for infractions "punishable by death."
Dean again dodges the distinction Quirin makes between ordinary POWs and “unlawful enemy belligerents.”
As that was the central deciding factor in the case, why hasn’t he mentioned it?
The answer, of course, is that he knows the EO covers those who under no circumstances could ever be considered “unlawful enemy belligerents.”
So far, Ex Parte Quirin suggests only one question regarding the constitutionality of the President Bush's order: Did the President need Congressional approval before issuing it?
This is nonsense.
Quirin suggests several questions...
Must there be a “declared enemy”?
Must there be a state of war?
What is the difference between a “lawful” and an “unlawful” belligerent?
... to name a few.
There can be little doubt that President Bush has acted just as his predecessors did, namely Abraham Lincoln and Franklin D. Roosevelt. Congress had already given its approval for his actions, through these prior statutes; if it seeks to retain the power to approve each military tribunal order of each President, it must first repeal the applicable provisions of the UCMJ.
Bush’s EO has nothing to do with the UCMJ.
Neither did FDR’s tribunal have anything to do with the Articles of War.
Once again, Dean is disregarding Quirin’s distinction between “lawful” and “unlawful” belligerents.
The remainder of the article does not address any of substantive criticisms.
You think I'm advocating the purchase of rights, and not the fair ante-ing up for protection of pre-existing rights. Quite liberal of you.
We still afford foreign nationals due proccess, allow them freedom to worship as they see fit, etc., etc., etc.
Let's say, for the sake of the argument, that the US brings Usama bin Laden back to the mainland after capturing him.
Would we keep him in a cell, in solitary until the moment that we dragged him out and hung him? Or would we have some type of trial for him?
Maybe the best way for you to gain support for your statement; would be to circulate a petition.
I __________(your name) do hereby surrender to ______(party currently in power)
the following of my God-given rights... (Check all that apply) The right to:
keep and bear arms [_]
to peacably assemble [_]
to worship in the manner of my conscience [_]
to expound my views without fear of arrest [_]
to petition my elected representatives for relief of grievances [_]
to decline to house troops without my consent [_]
to be secure in my person, house, papers, and effects, against unreasonable searches and seizures [_]
be secure from double jeapordy [_]
to not be a witness against myself [_]
to a speedy and public trial [_]
to be informed of the nature and cause of accusations made against me [_]
to know by whom I am accused [_]
to counsel for my defense [_]
to trial by jury [_]
to not have cruel and unusual punishments inflicted [_]
the right to PBJ (smooth_chunky) sandwiches [_]
a warm teat and a cold brew [_]
Signed and notrarized this __ day of 20__.
See how many takers you get, when things are PERSONAL.
Rights are infringed upon or surrendered, not granted by our keepers.
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