Latest from Down Guantanamo Way

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The latest from the hearings over whether the lawsuits from Guantanamo detainees can proceed, via Associated Press:

Attorneys for the prisoners argued that some were held solely on evidence gained by torture, which they said violated fundamental fairness and U.S. due process standards. But [Principal Deputy Associate Attorney General Brian] Boyle argued…Wednesday that the detainees "have no constitutional rights enforceable in this court."

U.S. District Judge Richard J. Leon asked if a detention would be illegal if it were based solely on evidence gathered by torture, because "torture is illegal. We all know that."

Boyle replied that if the military's combatant status review tribunals (or CSRTs) "determine that evidence of questionable provenance were reliable, nothing in the due process clause (of the Constitution) prohibits them from relying on it."

Those CSRT panels are the result of the government's attempts to deal with the aftermath of the Supreme Court's June decisions in Rasul and Hamdi. For more background and insight on these matters, see Reason's January 2005 cover feature–which subscribers (and why aren't you one?) already have, post office willing–by Harvey Silverglate, "Civil Liberties and Enemy Combatants." It's a detailed discussion of why, even after those decisions, the rights of those the government declares "enemy combatants"–and the rest of us–aren't very secure.

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  1. Boyle replied that if the military’s combatant status review tribunals (or CSRTs) “determine that evidence of questionable provenance were reliable, nothing in the due process clause (of the Constitution) prohibits them from relying on it.”

    I’ve been turning this bit over in my head all day, and I don’t see how it’s not a tautology. If the evidence is of questionable provenance, how can you determine it’s reliable? And if it’s reliable, doesn’t that make it no longer questionable? Maybe it’s an anti-tautology, which wouldn’t make it any more logical than a tautology.

    Presumably, you would assess the reliability of questionable evidence by corroborating it with other evidence. But if you have the other evidence, why do you need the torture evidence? It seems to me he’s trying to justify a kitchen-sink evidentiary strategy: The detainee was denounced by a suspect under torture; we also find some suspicious stamps in his passport; on their own the suspicious stamps would not be enough to make him a suspect, but in combination with the torture-evidence they can now be elevated to the status of Reliable Evidence, which in turn can be used to corroborate the torture evidence.

  2. I’ve learned a lot about this topic from some of the commenters in this forum over the past week, and I’d like to share some of what I’ve learned.

    “Attorneys for the prisoners argued that some were held solely on evidence gained by torture, which they said violated fundamental fairness and U.S. due process standards.”

    This week, I learned that fundamental fairness doesn’t exist unless you’re “anti-Semitic” and “anti-American”. Also, I learned that words don’t mean things. For instance, “evidence”, “torture”, “fundamental” and “fairness” are all figments of our imagination as is “imagination”, or so I’m told.

    As a corollary to this, I learned that my rights don’t exist apart from the language used to describe them; indeed, they only exist as a by-product of government! Why, we’re all completely at the government’s mercy! I know; it’s shocking, but I thought that, theoretically speaking, something could be legal yet wrong. Turns out, I was the one that was wrong.

    “U.S. District Judge Richard J. Leon asked if a detention would be illegal if it were based solely on evidence gathered by torture, because “torture is illegal. We all know that.””

    See! That’s what I thought! I thought everyone knew that torture was illegal, but then, just this week, some of commenters in this forum taught me that there is a significant distinction between “torture” and “cruel, inhuman and degrading” acts. Once they split that atom for me, I learned that there is no difference whatsoever between “cruel, inhuman and degrading” acts and a “rough interrogation”–AKA good cops just tryin’ to do their job.

    I also learned why this judge is wrong about it being “wrong” to hold people solely on evidence obtained by torture; it’s because these people are terrorists. You see, terrorists aren’t singled out by name as being protected by the right not to be forced to testify against themselves. Why the word “terrorist” isn’t even in the Constitution!

    “Boyle replied that if the military’s combatant status review tribunals (or CSRTs) “determine that evidence of questionable provenance were reliable, nothing in the due process clause (of the Constitution) prohibits them from relying on it.”

    …Speaking of the Constitution–the due process clause? Please! I also learned this week that the Constitution, a bunch of words, isn’t worth anything ’cause it isn’t soft and it isn’t absorbent.

    I’d like to thank every one of you commenters who took time out of your busy schedule this week to teach me all of this. As you’re picking out a really nice whip or pair of handcuffs for that special someone in your life, pick up on some of that good ol’ holiday cheer too. You deserve it! You’ve made the world a little brighter for someone for whom the world was confusing and dim. Well I can see the way now, and I’d like to thank all three of you by wishing you and everyone you love a Merry fucking Christmas.

  3. Ken, however much other commenters might annoy you, just remember that John Kerry would be much worse!

    That’s my stock reassurance on everything now!

  4. Here’s some news that will undoubtedly ruin Christmas for some people:

    … this December likely will go down as the first month since July of 1994 that the United States has witnessed no executions.

    (Is this on-subject? I think so.)

  5. Ken,

    Not that it’ll do any good, but I’ll give it a shot, it’s kind of interesting arguing with someone who lives in a completely different world šŸ™‚

    ” I learned that fundamental fairness doesn’t exist…”

    If you think there is “fairness” in life, then no doubt you’ll also be expecting a visit from Santa this X-mas.

    “I learned that my rights don’t exist apart from the language used to describe them; indeed, they only exist as a by-product of government!”

    And this surprised you how? You don’t understand that we have the rights that we do because of our consitution and political system? Do you think you’d have a right to due process or say a right to remain silent if you lived in Iran? As for the importance of language in determining rights… why you do suppose it is that our country is overrun with lawyers? Could it be that parsing the language and determining exactly what all those rights cover might be important?

    “See! That’s what I thought! I thought everyone knew that torture was illegal”

    And once again, define torture. If torture is illegal it must have a legal definition. Obviously definitions of what constitutes torture differ, sometimes wildly.

    “something could be legal yet wrong”

    Lots of things could be legal yet wrong, or conversely illegal but not wrong. I haven’t seen anyone here maintaining otherwise. Although maybe there have been. I could’ve missed it.

    “You see, terrorists aren’t singled out by name as being protected by the right not to be forced to testify against themselves. Why the word “terrorist” isn’t even in the Constitution!”

    Foreign terrorists, militants, whatever you want to call them are not citizens of the United States, and no, they are not entitled to the same protections that a U.S. citizen would be. Note I said “foreign.” That’s a very different thing from labeling a U.S. citizen (like Padilla) a terrorist or enemy combatant, stripping away their rights and holding them indefinitely — a clearly unconstitutional act in my opinion. I’m worried about the rights of U.S. citizens. Hostile foreigners get whatever rights we decide to grant them.

    “..Speaking of the Constitution–the due process clause?”

    See above. Merry Christmas to you also :).

  6. David: “Foreign terrorists, militants, whatever you want to call them are not citizens of the United States, and no, they are not entitled to the same protections that a U.S. citizen would be.”

    As my Constitutional Law professor would say: RTFC – Read the Constitution. Some rights are explicitly limited to “Citizens of the United States”, e.g., voting, being a Representative/Senator/President, etc.; other rights refer only to “people” or “person”, e.g., “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” meaning that they extend to all human beings regardless of whether they are U.S. citizens or not.

  7. “As my Constitutional Law professor would say: RTFC – Read the Constitution. Some rights are explicitly limited to “Citizens of the United States”, e.g., voting, being a Representative/Senator/President, etc.; other rights refer only to “people” or “person”, e.g., “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” meaning that they extend to all human beings regardless of whether they are U.S. citizens or not.”

    Sr,

    Sorry, but it is nowhere near as cut & dried as that. Your interpretation (and that of your Con. Law professor) is merely an opinion. I’m sure you are aware that others may differ, and that what exactly is meant or implied by any right is subject to interpretation and debate. And your interpretation is only valid in theory, since in actual practice U.S. constitutional rights do not extend to all people everywhere. Arguing that such rights not only extend to non-citizens, but to hostile non-citizens bent on attacking the U.S. is quite a stretch in my view.

  8. hostile non-citizens bent on attacking the U.S. is quite a stretch in my view

    OK, one more time:

    How do we know that these non-citizens are hostile and bent on attacking us? Oh, that’s right, the government says so.

    The same government that lied about the cost of the Medicare bill.

    The same government that passes 3200 page bills without reading them.

    The same government that gave us Amtrak, farm subsidies, and the FDA.

    The same government that burned down the Koresh compound, killed a bunch of kids, and didn’t hold anybody accountable.

    Yeah, we can take their word for it. Sure.

    Don’t get me wrong, I’m not saying that all accused terrorists are innocent. I’m just saying that we should have some sort of process to figure out if the people in question are in fact terrorists. If they are, well, I’m no longer interested in their rights. But until we’ve subjected the evidence to some sort of scrutiny, how can we be confident that the people in question are terrorists?

    Hmm, maybe we should have some way to evaluate allegations. We could augment our government to include a third branch that complements the Dear Leader and the Rubber Stamp Legislature. They’d have to judge whether or not the Imperial Branch got things right, so we could give the people in this third branch a title like, um, “judges.” And the Executive branch would be barred from punishing a person that it arrests unless a “judge” holds a trial where the person is found guilty in an adversarial process.

    Of course, that’s a pretty radical notion. It would completely undermine the Perfect Form of Government practiced by the Dear Leader. The only way we could implement this would be if we had some sort of revolution led by long-haired radicals who don’t trust authority. But who would ever take them seriously? They’d go around saying things like “That government which governs least governs best” and that would undermine the authority of the Dear Leader. Some of them might even start talking about “checks and balances” and “separation of powers.”

    Good thing nothing like that has ever happened here!

  9. “You don’t understand that we have the rights that we do because of our constitution and political system?”

    Because you asked this question with what feels like a straight face, I’m going to assume you don’t know anything about the basics of Libertarianism. If you want to communicate with libertarians effectively, and there are many who frequent this site, you might want to learn something about us. While by no means perfect, the following link offers a fairly objective and concise overview:

    http://en.wikipedia.org/wiki/Libertarianism

    “Lots of things could be legal yet wrong, or conversely illegal but not wrong.”

    If a thing can be both legal and wrong, how can our rights only exist as a function of government?

    “Not that it’ll do any good, but I’ll give it a shot, it’s kind of interesting arguing with someone who lives in a completely different world.”

    You’re on Earth too, right?

    After the statements you made yesterday suggesting passive support for Israel’s human rights abuses, I wouldn’t continue an argument with you about what degree of torture is appropriate in US policy any more than I would argue with you about whether or not we should reinstitute some form of slavery.

  10. You don’t understand that we have the rights that we do because of our consitution and political system?

    Hostile foreigners get whatever rights we decide to grant them.

    There goes the Declaration of Independence.

    There are many different kinds of “rights”. Torture is a violation of fundamental human rights, not of constitutional rights.

    Nowhere does the Constitution forbid torture (ie, for you pro-torture folks, “vigourous law enforcement interrogation techniques”).

    Below are definitions of “torture” as they appear in the United States Code:

    Title 18, 2340

    (1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
    (2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from?

    (A) the intentional infliction or threatened infliction of severe physical pain or suffering;
    (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
    (C) the threat of imminent death; or
    (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
    (3) “United States” includes all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501 (2) of title 49.

    Title 28,1350, sec. 3. DEFINITIONS.

    (b) Torture.?For the purposes of this Act?
    “(1) the term ?torture? means any act, directed against an individual in the offender?s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and
    “(2) mental pain or suffering refers to prolonged mental harm caused by or resulting from?

    “(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
    “(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
    “(C) the threat of imminent death; or
    “(D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.”

  11. Raymond,

    Is it okay to torture someone so long as they have their attorney present?

    What about due process? Since when is it okay to compel people to incriminate themselves?

    What about the prohibition against cruel and unusual punishment?

    What about the equal protection clause?

    That’s just off the top of my head!

  12. Raymond,

    Let me state first that I have nothing against trying and shooting unlawful combatants. I do find it deeply disturbing that we would lower ourselves to the level of our enemies, even a little bit, by treating them in other than the most correct manner.

    ” … other procedures calculated to disrupt profoundly the senses … ”

    Which to me means sleep deprivation not to mention a few other things we’ve been doing (sensory deprivation, etc.).

    Just because our President does not have the courage to request and our Congress does not have the courage to pass a declaration of war does not mean that we are not morally bound to conduct our operations according to the law of land warfare. It does not mean that we can hold people indefinitely and subject them to degrading treatment.

    We are better than our enemies and should behave as such. Our current methods, whether or not they are legally torture according the the USC, are wrong and will not work any better than the methods of the NKVD or Gestapo. (I am not saying our methods in any way compare to those of the NKVD and Gestapo. You should note, though, that it took those organizations some time to develop into the frightful manifestations of human depravity that they became.)

  13. Thoreau,

    “OK, one more time:

    How do we know that these non-citizens are hostile and bent on attacking us? Oh, that’s right, the government says so.”

    Yes, and of course because you don’t like our particular government it must be wrong about absolutely everything. I’m sure went to all that trouble to selectively incarcerate at Gitmo, a small number out of all of the various people that have been captured, without any decent evidence that they were associated with Al Qaeda.

    Ken,

    “Because you asked this question with what feels like a straight face, I’m going to assume you don’t know anything about the basics of Libertarianism.”

    No, I wasn’t joking. Telling me to look up Libertarianism in no way invalidates my point. Rather it suggests an inability to form a counterargument, or to explain your own beliefs.

    “If a thing can be both legal and wrong, how can our rights only exist as a function of government?”

    Ok, you are baffling me. I see no logical disconnect between those two propositions, unless you are arguing that rights are somehow God-given or derived from natural law, not from constitutions and political systems.

    “You’re on Earth too, right?”

    You fail to recognize a joke about our extremely different perspectives?

    “After the statements you made yesterday suggesting passive support for Israel’s human rights abuses, I wouldn’t continue an argument with you about what degree of torture is appropriate in US policy any more than I would argue with you about whether or not we should reinstitute some form of slavery.”

    Nice, cheap shot about slavery. Again, I consider you irrational on the issue of Israel, and no doubt you feel the same about me, so let’s agree to disagree about that one. But as for torture. Show me where I ever advocated torture as an aspect of U.S. policy. All I’ve been arguing is that torture is a subjective thing. If you’ll recall, we actually agreed on some of the treatment at Gitmo constituting torture. For example, to me, sleep deprivation is torture. But unlike you, I don’t think that just because I see that particular technique as torture, that everyone else has to believe that as well. There is no hard and fast definition of torture that everyone everywhere agrees on. If there were, there wouldn’t be all this argument about it. I don’t see why that concept is so difficult to grasp.

  14. David-

    If you read the rest of my post you’d know that I never said the government must be wrong. I just said that it would be nice to have a process in place to scrutinize the claims made by the executive branch.

    I’m pretty sure I’m not the first person to advocate such a system.

  15. Here’s a couple of hypotheticals out there for those of you who are moral absolutists and believe that torture can never be justified under any circumstances whatsoever:

    1. U.S. troops capture a high-ranking Al Qaeda member. When he’s brought in he’s defiant and starts ranting that they have a nuclear weapon planted in one of our major cities. It’ll be detonated at a time of their choosing, and there’s not a damn thing we can do about. After interrogating him and first dismissing this claim as BS, other evidence surfaces that his boast might actually be true. He won’t divulge any more information. Do you ratchet up the pressure and cross the line into techniques that could be considered torture?

    2. A small child is kidnapped. You capture the kidnapper but you find out that he left the kid imprisoned somewhere with no food or water. He says, “you bastards shouldn’t have messed with me because now that kid is going die of thirst.” Then he shuts up and won’t say another word. Do you say, well he does have the right to remain silent and hope you can find the kid in time, or do you bend the rules?

    And not a hypothetical but another point of theory, what about the simple threat of torture? Does making a prisoner believe that he will be tortured if he doesn’t cooperate — even if you won’t actually carry through on the threat — constitute torture in and of itself, or is that ever acceptable?

  16. thoreau,

    “If you read the rest of my post you’d know that I never said the government must be wrong. I just said that it would be nice to have a process in place to scrutinize the claims made by the executive branch.

    I’m pretty sure I’m not the first person to advocate such a system.”

    Believe it or not, I actually agree with you that the government is quite often wrong, and wrong about all sorts of things. But I’m highly skeptical of any claims that anything more than a couple of the Gitmo detainees have been wrongly judged to be enemies of the U.S. Whether or not they are being tortured, or whether they can be held indefinitely are different issues.

    And we do have system in place to scrutinize the executive branch. It’s called the judiciary. (Congress could weigh in also, but they don’t have the guts in most cases.) But since, as the article heading this thread mentions, hearings are now under way, it appears that such scrutiny is being brought to bear.

  17. David wrote: “Your interpretation (and that of your Con. Law professor) is merely an opinion. I’m sure you are aware that others may differ, and that what exactly is meant or implied by any right is subject to interpretation and debate.”

    As an attorney, I would be interested to see you identify one serious constitutional scholar who agrees with your proposition that non-citizens within U.S. territory do not enjoy the constitutional rights labeled as belong to “people” or a “person”. The U.S. Supreme Court has being holding to the contrary for well over a century. From Johnson v. Eisentrager, 339 U.S. 763, 771 (1950):

    “And, at least since 1886, we have extended to the person and property of resident aliens important constitutional guaranties–such as the due process of law of the Fourteenth Amendment. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.”

    The Yick Wo case cited above, interpreting the language of the 14th Amendment (which uses the word “person”), explained:

    “These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality”

    Yick Wo, 118 U.S. at 369. That was a unanimous decision and I’ve been unable to find a single case where a dissenter even suggested that “person” or “people” should be read as being limited to “U.S. citizens”.

  18. Let’s pretend Gonzales is on this board, for a moment.

    …nor shall be compelled in any criminal case to be a witness against himself …

    “Ah,” he might say. “Yes indeed. But as a strict constructionist I must conclude that the founders, using the words “against himself”, specifically do not forbid compelling people to be witnesses against others.

    “And while a forced confession might not be admissible in a criminal trial, it certainly would be in a civil case.”

    …nor cruel and unusual punishments inflicted.

    Here we can offer a two-pronged justification:

    1. “Torture used as a ‘vigourous law enforcement interrogation technique’ does not fall under the VIII Amendment. It’s not being used as a punishment but as an information-gathering technique.”

    2. “If it were being used as punishment, we would maintain that torture is no more ‘cruel and unusual’ than capital punishment. We stand proud with nations (such as China, Iran, Vietnam, Saudi Arabia…) where capital punishment and torture are every-day events.”

    No State shall … deny to any person within its jurisdiction the equal protection of the laws.

    A three-pronged justification:

    1. “At this time, no detainee is within the jurisdiction of any state.”

    2. “The Insular Cases.”

    3. “If a State (say, Texas, which is a world leader in this type of thing) decides to use torture, it must do so on both its brown and its black inhabitants.”

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    “Ah. A bit tricky, since the US has signed and ratified the Conventions. However, we have got around that by declaring ‘illegal’ the combatants we are now holding in Guantanamo. And the Conventions do not apply to internal matters, but only to countries at war. And the US is not, legally, ‘at war’, since no legal declaration of war has been made.

    “Moreover, we have specifically refused to adopt the UN Protocol to Prevent Torture. ‘… four countries voted against the adoption of this preventive instrument, namely the USA, Nigeria, the Marshall Islands and Palau.'”

    You see, Ken. While federal law does, the Constitution itself nowhere forbids the use of torture.

    And while well-meaning, the XIV Amendment contains language which throws the principles of the Declaration of Independence out the window (and therefore should be amended, imo).

    The amendment states: nor shall any State deprive any person of life, liberty, or property, without due process of law.

    Government is established to secure the unalienable rights, not to deprive people of them.

    ——-

    Let me state first that I have nothing against trying and shooting unlawful combatants.

    And let me state that capital punishment is a clear violation of the principles of the Declaration of Independence.

    I do find it deeply disturbing that we would lower ourselves to the level of our enemies, even a little bit, by treating them in other than the most correct manner.

    Me too. And worse, that you lower yourselves to the level of some of your friends. Saudi Arabia, China, Russia…

    We are better than our enemies and should behave as such.

    Actually, no, we are not better. We are precisely the same as our enemies. That’s why we need a government which adheres to the principles of the Declaration of Independence and promulgates and tries to achieve the goals set out in the Universal Declaration of Human Rights.

    ———

    …unless you are arguing that rights are somehow God-given or derived from natural law, not from constitutions and political systems.

    You see, Fabius? This statement is apparently a rejection of the concept of “fundamental human rights” that we find in the Declaration of Independence. What “David” seems to be saying is that all rights come from governments.

    I would maintain (and this is not cheap-shot insult) is that “David’s” position is fascist: “Everything is in the State, and nothing human or spiritual exists, much less has value, outside the State.”

    I don’t think that just because I see that particular technique as torture, that everyone else has to believe that as well. There is no hard and fast definition of torture that everyone everywhere agrees on.

    There is no “hard and fast definition” of “human being”, either. If there were, there’d be no argument about slavery, abortion…

    “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean-neither more nor less.”

    So what we have in “David’s” posts is fascist-Humpty-Dumpty theory.

    ——–

    Hypotheticals…

    Do you ratchet up the pressure and cross the line into techniques that could be considered torture?

    Would there, for you, David, even be a line? Where would you stop? Where would the “higher good” cease to outweigh your distaste (?) for torture? Bamboo under fingernails? Electrodes on genitals? Cutting off of toes and fingers? Flaying?

    Or might it not be more effective to do these things to your prisoner’s little daughter in front of him?

    In your hypothetical, are you telling us (subtly) that “The end justifies the means”?

    And if you are, would you agree that people who plant nuclear bombs in cities or saw the heads off other people are simply appyling your own principles? That you and they are of a cloth?

    Does making a prisoner believe that he will be tortured if he doesn’t cooperate — even if you won’t actually carry through on the threat — constitute torture in and of itself

    Yes.

  19. Jack,

    “As an attorney, I would be interested to see you identify one serious constitutional scholar who agrees with your proposition that non-citizens within U.S. territory do not enjoy the constitutional rights labeled as belong to “people” or a “person”.”

    I would suggest doing a few google searchs and you will find some. I would also suggest that the government can marshal its own lawyers to refute on constitutional grounds, sweeping arguments that extensive U.S. constitutional rights apply to hostile non-citizens. I don’t need to do it for them. Sorry, I don’t accept your argument that maintains that your broad view for who gets constitutional rights is the only valid one.

    Raymond,

    “This statement is apparently a rejection of the concept of “fundamental human rights” that we find in the Declaration of Independence. What “David” seems to be saying is that all rights come from governments.

    I would maintain (and this is not cheap-shot insult) is that “David’s” position is fascist: “Everything is in the State, and nothing human or spiritual exists, much less has value, outside the State.”

    Ok, i’ll try again. What we have here is a fundamental disconnect between THEORY and REALITY. According to various political theories, including those on which the U.S. constitution is based, human beings have certain rights. The Declaration of Independence declares that the rights to life, liberty & the pursuit of happiness are “self-evident.” This statement is and was a political theory advanced by those who wrote it. It was and is NOT an objective fact. If these rights were in any actual way “self-evident,” explain the existance of slavery and autocracy worldwide when the Declaration was written. Those rights are self-evident only to those expressing them.

    The reason we enjoy such rights in the United States is precisely because our constitution and system of government recognizes them. That’s reality. In my view, arguing that rights have nothing to do with government is the realm of pure theory, and utterly meaningless in the real world, except as a rallying cry to make political changes. In reality you cannot exercise any rights unless you live under a system of government that recognizes and protects them. If you doubt this, try living in an autocratic state and see how far your theoretical concepts of rights take you.

    If you think I’m a fascist because I disagree with your utopian view of human rights, then I submit that you don’t have the slightest idea what a fascist is. Because I disagree that rights are inherent, self-evident, God-given, derived from natural law, or have any sort of actual mystical existance apart from political systems, does not mean I oppose those rights or believe they shouldn’t be extended to people.

    “Would there, for you, David, even be a line? Where would you stop? Where would the “higher good” cease to outweigh your distaste (?) for torture? Bamboo under fingernails? Electrodes on genitals? Cutting off of toes and fingers? Flaying?”

    This is a slippery slope argument. As such it is a reasonable argument about the dangers of not having a hard & fast line on how prisoners are treated. But it doesn’t answer my question. Do you maintain that there are no situations whatsoever in which torture could ever be justified?

    Unlike you, I will answer your question. Would there be a line for me? Yes, but it would depend on the situation. I think torture is not only barbaric but dehumanizing to those who employ it, and therefore it should not be our policy to use it on prisoners. However, I can envision certain extraordinary situations in which I would set principle aside and use it anyway. Yes this makes me at least to some extent a moral relativist, and yes, I do believe that in SOME cases, the ends do justify the means.

    “And if you are, would you agree that people who plant nuclear bombs in cities or saw the heads off other people are simply appyling your own principles? That you and they are of a cloth?”

    No, I would not agree. This is simplistic moral equivalence, and to me, fundamentally illogical. To believe that you have to believe that the killing of a enemy in arms against you is morally equivalent to the killing of an innocent, simply because they both involve killing.

  20. David,

    About your small child..

    Yes, the SOB has the right to remain silent. The police can talk, coerce, bribe all they want to. They must stop short of cutting off body parts, no matter how much he deserves it. No one promised observing human rights is/should be easy. That’s why we’re above the Al Qaeda terrorists.

  21. BigPhil,

    I agree that under our laws he definitely has the right to remain silent no matter what horrendous crime he may have committed. But that’s a different question than whether or not you could justify torturing him. I see such questions as a illustrative of the possible difference between legality & morality. It would clearly be illegal to torture that individual, regardless of the possiblity that it might help save his victim’s life. But would it be immoral in that case? Illegal does not necssarily equal wrong, any more than legal equals right.

  22. You’re going to have to spell it out for me.

    In your opinion, do we have our fundamental rights because of the State (“constitution and political system”)? Does the State give them to us? Did you mean this–>

    You don’t understand that we have the rights that we do because of our consitution and political system? (David at December 4, 2004 01:32 PM)

    Or do we have rights regardless of the State in which we live? Do you mean _this_–>

    The reason we enjoy such rights… you cannot exercise any rights unless you live under a system of government that recognizes and protects them. (David at December 5, 2004 09:18 AM)

    Is the role of government to secure the rights we have as human beings? If it is, where do those rights reside?

    Or let me put it another way. If an American leaves the USA, do his fundamental rights cease? (There are people who believe they do. I’m just curious.)

    In my view, arguing that rights have nothing to do with government is the realm of pure theory…

    Who argued that? “Have nothing to do with.” Why, securing rights is why we set up governments.

    If you think I’m a fascist because I disagree with your utopian view of human rights…

    1. I never said you were a fascist. (I’m very careful with that ad-hominem stuff.)

    2. Lots and lots of people disagree with me. One is not fascist for that.

    3. “Utopian”. Would I be correct, then, in thinking that you reject the concept of “fundamental human rights” that we find in the Declaration of Independence?

    4. Do you – as you seem to indicate in several places – agree with this statement: “The State … is the creator of right”? Do you hold that “Everything is in the State, and nothing human or spiritual exists, much less has value, outside the State”? Just curious.

    Would there be a line for me? Yes, but it would depend on the situation.

    In other words, there is no line for you.

    I do believe that in SOME cases, the ends do justify the means.

    And who would determine those cases? You?

    Am I in any personal danger from you? Just curious.

    Do you maintain that there are no situations whatsoever in which torture could ever be justified?

    Yes.

  23. 2. A small child is kidnapped. You capture the kidnapper but you find out that he left the kid imprisoned somewhere with no food or water. He says, “you bastards shouldn’t have messed with me because now that kid is going die of thirst.” Then he shuts up and won’t say another word. Do you say, well he does have the right to remain silent and hope you can find the kid in time, or do you bend the rules?

    Is this a reference to Wolfgang Daschner and Magnus G?fgen in Frankfurt, or is it just a silly excursion to the anything-goes land of situational ethics?

  24. Should be “Magnus Gaefgen”….

  25. “I learned that fundamental fairness doesn’t exist…”

    —-Ken Shultz

    “If you think there is “fairness” in life, then no doubt you’ll also be expecting a visit from Santa this X-mas.”

    —-David

    Is it necessary to explain why the Constitution and the principles of the Declaration of Independence are important? Once someone equates fundamental fairness with the existence of Santa Claus, why go any further?

    In some ways, I think the people who agree with David are like the human rights equivalent of welfare queens. Trying to explain to them why they should respect the human rights of others, even as they enjoy the benefits of other people’s respect for human rights, is much like trying to explain to welfare queens why they shouldn’t have children that they aren’t capable of supporting.

    Just as welfare queens were a rallying cry for tearing down the welfare state, so too could people who agree with David become poster children for the policies of Rumsfeld, Ashcroft and Gonzales. Let’s encourage them to express their opinions to a wider audience.

  26. Raymond,

    “In your opinion, do we have our fundamental rights because of the State (“constitution and political system”)? Does the State give them to us? Did you mean this–>”

    Yes and no. Rights without the ability to exercise them are meaningless. Rights without a state system based on them do not exist except as concepts of political theory. Again, I am arguing practical vs. theoretical. This does not mean that I think the concept of fundamental human rights is bad, or should not be the basis for government. What it means is that in my view, if you don’t have a state that enmuerates and respects your rights, in practical fact you do not have those rights. You can say you have them, believe you do, believe everyone should have them, but in the real world you do not — unless you live under a system that recognizes them. I would not say the state “gives them to us.” Rather, I would say the the creation of our particular type of state allows us in practice to have the rights we now have. Saying that the state give us rights now, implies that the state can just take them away. But as our rights are enshrined as part of the state itself, taking them away would fundamentally alter or destroy the state.

    “Is the role of government to secure the rights we have as human beings? If it is, where do those rights reside?”

    It would be nice if it were, but that isn’t the case. That was my point when I used the term “utopian.” How many governments out there, in actual fact, see this as their role? How many citzens of various countries would agree that this is the role of their particular government?

    “Or let me put it another way. If an American leaves the USA, do his fundamental rights cease? (There are people who believe they do. I’m just curious.)”

    That depends on a couple of factors. Does the country he is now residing in or visiting respect those rights? Can the power of the U.S. enforce respect for those rights? If the answer to either question is no, then those rights return to the realm of theory and cannot be exercised. If you doubt this, travel to Iran and attempt to give a public speech in that country detailing the evils of militant Islam and rule by mullahs. Then decide whether or not you retain the right to free speech.

    ” I never said you were a fascist. (I’m very careful with that ad-hominem stuff.)

    2. Lots and lots of people disagree with me. One is not fascist for that.”

    Sorry to overreact on that. I do understand your point that my reasoning could be used to justify fascism. But I don’t believe that it is, in and of itself, a fascist argument. I can believe that best type of government is one based on political theories that advocate fundamental human rights, even while disbelieving that those rights have any sort of inherent existance.

    ” “Utopian”. Would I be correct, then, in thinking that you reject the concept of “fundamental human rights” that we find in the Declaration of Independence?”

    Not exactly. I know it may sound like I’m splitting hairs here, but to me this is an important point. I don’t reject the idea of fundamental human rights as a “concept.” But the concept has no practical meaning without a political system that enshrines it and puts it into operation.

    ” Do you – as you seem to indicate in several places – agree with this statement: “The State … is the creator of right”? Do you hold that “Everything is in the State, and nothing human or spiritual exists, much less has value, outside the State”? Just curious”

    No, I would definitely not agree with those statements. I am not an absolutist in any sense of the word — very rarely do I view things in stark black and white terms. And I’m not a complete materialist. Religiously speaking I’m a skeptic/agnostic, not an atheist.

    “In other words, there is no line for you”

    One single inviolate line? No. And I don’t think there is for most people either.

    “And who would determine those cases? You?

    Am I in any personal danger from you? Just curious.”

    If the situation affected me then yes, of course I would have to determine how far I’d be willing to go. Why would you be in danger from me? As far as I am aware, all we are doing is having an interesting discussion.

    “Do you maintain that there are no situations whatsoever in which torture could ever be justified?

    Yes.”

    Really? I know this is unfair but since you take an absolute moral position here, let’s take my hypothetical kidnap scenario a step farther. Now it’s your child that’s been kidnapped, missing and left to die, and it’s you that has captured the kidnapper. You still feel that torture is beyond the pale even to save your own child’s life?

    Ken,

    “Is it necessary to explain why the Constitution and the principles of the Declaration of Independence are important? Once someone equates fundamental fairness with the existence of Santa Claus, why go any further?”

    Is it necessary to explain that what I’ve been arguing is exactly why the constitution of the United States is so important? You seem utterly unable to grasp exactly what it is that I’ve been saying all along — ie that rights in the absence of political systems that respect them are mere concepts of theory. And yes, if you believe in fundamental fairness in life, then in my opinion you live in a fantasy world.

  27. I’ve noticed there really is a very irritating sort of dogmatism in people like Ken Shulz and Raymond, a kind of a piety, a starkness, I guess you could call it that. They have all of these correct positions and it’s as if they already live in some kind of nirvana while the reality around them is problematic to say the least.

  28. “I’ve noticed there really is a very irritating sort of dogmatism in people like Ken Shulz…”

    I’ve been waiting years for someone to say that…*sniff*…thank you.

    We are talking about torture here. I’ve a few of these issues, and I feel really strongly about them: now let’s see…there’s the torture issue, slavery, the Constitution and fundamental fairness. I think that about does it. I happen to lean pro-life; for instance, but, as several old threads can attest, I’m not dogmatic about it.

    Perhaps you’ll be more forgiving if you take the time to note the similarities between the parody of the arguments I posted near the top of this thread and the actual arguments that followed my parody. Someone once asked a famous Roman writer why he wrote satire, and he responded that, given the times he lived in, what else could he write? I could easily respond likewise; given the times I live in, what else can I be but starkly pious and dogmatic?

    There are those who argue that appealing to people’s morals is often counter productive, but I would argue that the struggle to end slavery and the struggles of the civil rights movement were successful specifically because they appealed directly to people’s morals.

    …Not that there was much choice; these are questions of morality. It doesn’t matter whether or not slavery was the most beneficial economic system ever devised and it doesn’t matter whether or not there is some net benefit to segregation; slavery and segregation are morally wrong. I’m simply adding that it’s also wrong to torture people regardless of the benefit.

    …and besides *fist hitting table* it’s against the Constitution!

  29. I’ve noticed there really is a very irritating sort of dogmatism in people like Ken Shulz and Raymond, a kind of a piety, a starkness, I guess you could call it that. They have all of these correct positions…

    Look at this:

    [U.S. District Judge Joyce Hens Green] asked if a ”little old lady in Switzerland” who unknowingly gave to an Afghan charity that was an al Qaeda front could be held as an enemy combatant. [Brian Boyle, a Justice Department lawyer] said she could be, and the military could detain any foreigner who aids terrorism

    If this little old lady could be detained, why couldn’t I be?

    If any “enemy combatant” could be tortured, why couldn’t I be?

    If innocent people can be condemned to death, why couldn’t I be?

    You’d better believe I’m starkly dogmatic, almost pious, when it comes to my fundamental human rights.

  30. raymond,

    “If this little old lady could be detained, why couldn’t I be?”

    Apparently you could be if you unknowingly gave to an Al Qaeda front.

    “If any “enemy combatant” could be tortured, why couldn’t I be?”

    Because you are not an “enemy combatant”? Arguing that you could be labeled as such is irrelevant, since you could wrongly be labeled as any type of criminal and therefore be wrongly imprisoned.

    “If innocent people can be condemned to death, why couldn’t I be?”

    Of course you could be. Innocent people have been condemned to death before and will continue to be. But again, why is that relevant?

    “You’d better believe I’m starkly dogmatic, almost pious, when it comes to my fundamental human rights.”

    This brings me to a question that I forgot to ask I my last post. Since you disagree that rights are a function of political systems, where exactly do your fundamental human rights come from? (And Ken Shultz, feel free to weigh in here also, since you appear to have similiar beliefs.)

    Along the lines of what Kenneth Jeordi said, at times here I’ve felt similarities to instances when I’ve attempted to argue with someone who believes The Bible is the divinely-inspired, infallible word of God.

    I say, I don’t believe X.

    He says, you’re wrong, because God says X. It’s in The Bible.

    I say, but I don’t accept The Bible as the word of God. X makes no sense logically so therefore I don’t believe it.

    He says, you’re wrong. Read The Bible and you’ll see that I’m right about X.

  31. Arguing that you could be labeled as such is irrelevant, since you could wrongly be labeled as any type of criminal and therefore be wrongly imprisoned.

    It is quite true that you could be wrongly convicted of a crime even if our government didn’t label people as “enemy combatants.” The whole point is that wrongful convictions are less likely if people have due process rights, so it’s dangerous when the government starts tossing around those labels. It isn’t just a semantic distinction, what’s at stake here is the standard to which the government is held.

    A person who’s arrested for a crime that he didn’t commit gets a trial where he can contest the charges. A person who’s convicted of a crime that he didn’t commit can appeal the conviction. Neither course is guaranteed to lead to freedom, but it’s at least an opportunity.

    A person who’s wrongly labeled as an “enemy combatant”, on the other hand, can’t do anything about it. Or at least he couldn’t if the Bush administration got its way.

  32. thoreau,

    Point granted, at least partially. I agree that the Bush administration’s legal theory that it can label a U.S. citizen an “enemy combatant,” strip him of his right to due process, and hold him indefinitely, is clearly unconstitutional. However, as I’ve argued before (and I know others disagree), I do not believe that a presumed hostile alien,non-citizen enjoys the same U.S. constitutional rights as a citizen, or even as a resident non-citizen. And nor should they, in my opinion.

    But that should be decided in the court system. It is up to the courts to determine exactly what rights an “enemy combatant” possesses, or to throw out the entire category as unconstitutional and force the executive to decide whether or not those prisoners are POWs, or criminals. Once that status is fixed, it will no longer be possible to hold them indefinitely without trial.

  33. I don’t have time to go over everything right now. So I’ll be brief (and selective).

    “In other words, there is no line for you”

    One single inviolate line? No. And I don’t think there is for most people either.

    That’s why we make governments. To keep people from hurting me with their movable lines.

    “If innocent people can be condemned to death, why couldn’t I be?”

    Of course you could be. Innocent people have been condemned to death before and will continue to be. But again, why is that relevant?

    Because I consider the right to Life to be one of the fundamental unalienable human rights. It’s sort of basic to the discussion.

    In your earlier posts (before you changed your wording), you seemed to indicate that you hold that the State grants fundamental rights. (You don’t understand that we have the rights that we do because of our consitution and political system? … Hostile foreigners get whatever rights we decide to grant them.). If this is true, then men belong to the State. I disagree with that position, of course.

    I prefer Paine.

    where exactly do your fundamental human rights come from?

    I’ll let you read my site. I don’t feel like cutting and pasting.

    btw. We’re talking about two different kinds of “rights”. (I believe I’ve pointed this out already. Perhaps on a different thread.) I’m talking about fundamental individual rights (Live, Liberty, Property), and you’re talking about the right to turn right on red.

  34. raymond,

    “That’s why we make governments. To keep people from hurting me with their movable lines.”

    I agree

    “Because I consider the right to Life to be one of the fundamental unalienable human rights. It’s sort of basic to the discussion.”

    And I maintain that it is not an inalienable right in practice, unless you live under political system that recognizes it. And even then it is not inalienable if the government determines that you have given it up by your actions. For example, if you are convicted of murder and receive the death penalty. Incidentally, I consider an argument that the Declaration makes the death penalty unconstitutional because of the right to life illogical. If so, shouldn’t imprisonment be equally unconstitutional because of the right to liberty?

    “n your earlier posts (before you changed your wording), you seemed to indicate that you hold that the State grants fundamental rights. (You don’t understand that we have the rights that we do because of our consitution and political system? … Hostile foreigners get whatever rights we decide to grant them.). If this is true, then men belong to the State. I disagree with that position, of course.”

    I don’t think men belong to the State. And I don’t think that conclusion necessarily follows from my reasoning.

    “I’ll let you read my site. I don’t feel like cutting and pasting.

    btw. We’re talking about two different kinds of “rights”. (I believe I’ve pointed this out already. Perhaps on a different thread.) I’m talking about fundamental individual rights (Live, Liberty, Property), and you’re talking about the right to turn right on red.”

    I take it from your site that your concept of rights is based on natural law? Or am I reading it incorrectly? Since I don’t believe in natural law, it is no wonder we are in disagreement about what rights are. And I’m talking about the same rights that you are, I just disagree with you about where they are derived from and who gets them.

  35. I consider an argument that the Declaration makes the death penalty unconstitutional because of the right to life illogical.

    I’ve never heard such an argument. I’ve certainly never made such an argument.

    If so, shouldn’t imprisonment be equally unconstitutional because of the right to liberty?

    There it is again. That word. “Unconstitutional”. How strange.

    (I’ve tried to deal with my understanding of Liberty and prison on the site, btw. )

    I’m talking about the same rights that you are

    No you’re not.

    – “Do you think you’d have a right to due process or say a right to remain silent if you lived in Iran?”

    – “since in actual practice U.S. constitutional rights do not extend to all people everywhere.”

    As I said ages ago:

    There are many different kinds of “rights”. Torture is a violation of fundamental human rights, not of constitutional rights.

    Nowhere does the Constitution forbid torture (ie, for you pro-torture folks, “vigorous law enforcement interrogation techniques”).

    Since I don’t believe in natural law, it is no wonder we are in disagreement about what rights are.

    I think we’re speaking two different languages.

  36. Fact is that nobody actually knows what kind of U.S. constitutional rights the detainees at Guantanamo have, or, to the extent that there may be other sources of rights for them (such as the Geneva Convention), whether those rights are binding in federal court. What we know, from Rasul v. Bush, is that the federal courts have jurisdiction to consider the question, but we just don’t know what the answer is, because there are rather few opinions on the constitutional rights of non-citizen detainees outside the United States as a general matter, and those opinions that shed any light at all on the issue here, for instance United States v. Verdugo-Urquidez, Reid v. Covert, and Johnson v. Eisentrager, are generally too splintered, factually different, and in some cases too dated to tell us very much. No one really can know how the federal courts and the Supreme Court are going to answer these questions.

    Faced with that uncertainty, the Bush Administration has taken the quite reasonable position that they’re not inclined to say that a detainee has a particular right unless a court affirmatively rules that this is so. That’s nothing more than a lawyerly tactic, as conventional as they come, under the circumstances.

    Mr. Boyle’s comments follow from that position. Apparently, the Guantanamo detainees in the case before Judge Leon have alleged that they have a constitutional right to be released because the evidence needed to justify detaining them was obtained by torture. Boyle responded with the minimalist position that as a matter of law, the detainees do not have the constitutional rights needed to trigger the remedy of release because the constitutional minimum was reliability of the evidence, not the specific procedures that were used to obtain the evidence.

    The point, obviously, is not that the U.S. government is trying to persuade people that torture by the military is okay or what is or isn’t torture. Rather, the point is that the Administration is taking a controversial litigation position about constitutional law and waiting for the courts to tell them that they’re wrong (or not).

  37. raymond,

    “I think we’re speaking two different languages”

    I agree. I find your arguments perfectly reasonable in conjunction with your belief in inherent fundamental human rights. Since I do not share that belief, however, and believe that political theories of rights have no actual meaning without practical structures that recognize them and allow them to be exercised, then your reasoning is invalid to me. And vice versa. It is in essense, very similar to two people with different religious beliefs attempting to argue a point of faith.

    As I see it, I am arguing a particularist position that maintains that we only have our rights because the founders established a system of government that enshrined them in the constitution. And as a corollary, because they are particular they do not necessarily extend in full to non-citizens. You are arguing a universalist position which maintains that human rights are derived from natural law, and that our system of government merely recognizes and codifies that which already existed. These two positions are incompatible.

    But in any case, we have probably beaten it to death on this thread :).

  38. Terms like “fundamental human rights”, in and of themselves, have little meaning; actually they mean nothing at all if they can’t be enforced.

    There might be a “right to work” in a catalog somewhere, but unless you find a court where you can sue someone’s ass to employ you, this particular right is just a pipe dream, pretty much as a right to fair weather.

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