Civil Liberties

Detention Attention

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It looks like the U.S. Court of Appeals for the 4th Circuit, which has a reputation as the most government-friendly federal appeals court, may rule against the Bush administration's policy of indefinitely detaining anyone the president unilaterally declares an "enemy combatant." Yesterday the court heard oral arguments in a case involving Ali al-Marri, who is said to be the only terrorism suspect still being held in military custody on the U.S. mainland. (Given this administration's secrecy and claims of broad executive power, I'm not sure how we know that's true.) In 2001 Al-Marri, a legal U.S. resident from Qatar, was arrested in Peoria, where he was studying computer science at Bradley University, on charges of credit card fraud and lying to federal agents. He was later transferred to the U.S. Navy brig in Charleston because of suspected ties to Al Qaeda. According to The New York Times, two members of the three-judge panel hearing the case were distinctly skeptical about the Bush administration's argument that the president alone has the authority to decide al-Marri's fate.

"What would prevent you from plucking up anyone and saying, 'You are an enemy combatant?'" Judge Roger L. Gregory asked the administration's lawyer, David B. Salmons. Short answer: Nothing. In fact, Salmons added, "a citizen, no less than an alien, can be an enemy combatant."

Judge Diana Gribbon Motz asked if the administration could declare war on People for the Ethical Treatment of Animals (presumably after labeling it a terrorist organization) and hold its president as an enemy combatant. "The representative of PETA can sleep well at night," Salmons said, because the president is careful in determining who is an enemy combatant.  "If the U.S. can do this, it's contrary to the Constitution," Motz said. "It would give other nations the ability to do that by declaring a U.S. citizen an enemy combatant."

Alluding to Jose Padilla, an enemy combatant who was transferred back to civilian custody before the Supreme Court could rule on his challenge, and Yaser Esam Hamdi, an enemy combatant who was released after the Court said he had a right to challenge his status before "a neutral decisionmaker," Motz wondered if something similar might happen with al-Marri. "Often the government in these cases has a late-breaking development," she said. "Is there any late-breaking development here?"

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  1. Hmmm…have we reached the “recurring problem that is evading review” stage yet?

  2. Judge Diana Gribbon Motz asked if the administration could declare war on People for the Ethical Treatment of Animals (presumably after labeling it a terrorist organization) and hold its president as an enemy combatant. “The representative of PETA can sleep well at night,” Salmons said, because the president is careful in determining who is an enemy combatant.

    IOW: “Trust us; the President is a good guy who would never abuse his authority.”

  3. They are just being stupid about this. These guys are not supermen requiring extordinary powers to deal with. Change the immigration laws to let the governmet sumarily deport people suspected of having ties to terrorists groups and send his miserable ass back to Quatar and let them deal with him, where he can disapear and no longer be a problem. It is not that hard. You don’t need to throw out the Constitution to do this stuff. It is truly amateur hour up there and espeically DOJ these days.

  4. It took us this long to get people saying this?

  5. Very good points, John.

  6. Two words: War crimes

  7. “Often the government in these cases has a late-breaking development,” she said. “Is there any late-breaking development here?”

    Someday somebody will score some major political points by declaring victory in the War on Terror. …and oh what a happy day that will be.

    And someday maybe I’ll laugh at myself for having thought that the War on Terror would go on forever. For now though, I can only look forward to the day when we can interpret “late breaking developments” as a signal that the Administration wants to avoid a political embarrassment. …rather than assume the government wants to avoid having its practices declared illegal.

    I mean, wouldn’t that be some kind of inflection point?

  8. John,

    “Change the immigration laws to let the governmet sumarily [sic] deport people…”

    That may not be possible. It would almost certainly be contested in the courts.

  9. Change the immigration laws to let the governmet sumarily [sic] deport people…”

    That may not be possible. It would almost certainly be contested in the courts.

    You are right. But I think Bush, if he had been smart could have used the political capital from 9-11 to get it done. Ultimately it should be done. I am all for Constitutional protections, but the idea that anyone who is here illegally or as a resident alien has some inalienable right to due process beyond what Congress and the President wants to give them is just bullshit. If you really think someone has ties to terrorism and they are a foreign national, the government ought to be able to deport them. Deportation is not jail. It should not be that hard to do, but alas it is.

  10. Perhaps there could be some feasible middle ground between “summary deportation” and the status quo. Perhaps “significant easier deportation when there’s evidence of terrorist ties”, or something.

    I think John’s essential point is that there’s more than one way to make sure a terrorist isn’t running around on US soil without interference.

  11. John,

    I am all for Constitutional protections, but the idea that anyone who is here illegally or as a resident alien has some inalienable right to due process beyond what Congress and the President wants to give them is just bullshit.

    They have the rights due them under the Constitution.

    thoreau,

    Perhaps “significant easier deportation when there’s evidence of terrorist ties”, or something.

    And how do you determine when there is such evidence? What are the procedures for determining such? Which body or bodies will determine it? Are they going to be due an appeal? What sort evidentiary procedures are going to be involved? Etc. It is a very complex issue.

  12. “They have the rights due them under the Constitution”

    Where? There is nothing in the Consitution that says you are entitled to anything beyond minimal sort of due process before being deported.

  13. Why did we need any novel categories?

    Agents of foreign powers operating within our borders are nothing new.

  14. John,

    Where? There is nothing in the Consitution that says you are entitled to anything beyond minimal sort of due process before being deported.

    Well, if that is the case then that would be the rights due to them under the Constitution, right?

  15. Related, sort of- (BBC)

    “Germany has ordered the arrest of 13 suspected CIA agents over the alleged kidnapping of one of its citizens.

    “Munich prosecutors confirmed that the warrants were linked to the case of Khaled al-Masri, a German national of Lebanese descent.

    “Mr Masri says he was seized in Macedonia, flown to a secret prison in Afghanistan and mistreated there.”

    Perhaps this administration cannot do as they please with impunity, forever. Might further arrest warrants and extradition requests be forthcoming? We can hope.

  16. If there is evidence that someone is involved with terror groups, why the hell would we want to deport them, instead of holding as the investigation contiues? Let’s say their home country is Iran – everyone who thinks its’ a good idea to deport suspected Islamist terrorists to Iran, please raise your hands.

    People accused of crimes should have due process rights and get their day in a civilian court. If they need to stay in custody for safety or intel reasons, the government should bring that up at the bail hearing. Once convicted, there should be a procedure to have them declared enemy combatants and transferred to military custody.

  17. “””They have the rights due them under the Constitution”

    Where? There is nothing in the Consitution that says you are entitled to anything beyond minimal sort of due process before being deported.””””

    How many criminal cases in the past have afforded them the same rights and an American on trial? Speeding, theft, drug posession, ect. According to the Declaration of Independence, justice is an unalienable right. There is no justice if you can’t question your detention in front of an independent party.

    We have a history of giving immigrants Contitutional rights at trial. Other freeworld countries extend the same right, with respect to the law of their land, when an American get arrested on their soil.

    However, if your in this country illegally, a summary judgement that puts you back where you came would not be an injustice. This is rooted in the fact your not supposed to be here.

    As far as Padilla and the 4th Court, the Judge that ruled on that case resigned because he didn’t like the way the Bush and co. just dropped the dirty bomb claim when it was going to the Supreme Court. He said it ruined the governments credibility.

    I do agree with John that there is a way to deal with this that doesn’t require extordinary powers. But we won’t find it in a Xenophobe atmosphere.

  18. Where? There is nothing in the Consitution that says you are entitled to anything beyond minimal sort of due process before being deported.

    Sometimes I almost get tired of having to repost the constitution:

    Amendment V:

    “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. ”

    note, it says person, not citizen. I’m not sure where the notion that the bill of rights only applies to citizens comes from, but it certainly isn’t the text of the document itself.

  19. From TrickyVic, “How many criminal cases in the past have afforded them the same rights and an American on trial?”

    I’m putting words in John’s mouth, but I think that he’d say those cases were wrongly decided. Still, if that is the law now, it should be followed, until Congress amends it.

    I personally have no problem with the deportation of a resident alien upon a conviction of a felony or the deportation of an illegal alien whenever found. What is the law on resident aliens anyway? Can they be deported at the pleasure of the Government? Upon a determination that the preponderance of the evidence shows they committed a crime? I don’t know.

    And I’m sure joe knows this, but the reason that the US deports aliens to their home countries is that the home countries are rather less proscribed in their interrogation of suspects than we are. Moreover, friendly foreign nations will share with us whatever results—however blood-soaked. If those aliens have a complaint with the conduct of their home countries, they need to take it up with their own country. Of course then, they’ll definitely be considered terrorists…

    Padilla’s situation by contrast is an absolute injustice. He needed to have been charged, indicted or let go. When American citizens can be declared enemy combatants without due process, our safety and security is transferred from the law to the wishes of the Executive. It is abhorrent. It needs to stop and I think that Eryk’s comment above is spot on: the controversy is ripe for SCOTUS to figure out whether, as a general rule, the government can lock you up without giving you your day in court.

  20. And let’s not forgot, the Constitution isn’t so much there to tell us what our rights are (we have inalienable rights, citizen, tourist, or terrorist), the Constitution is there to ennumerate the powers of the government.

    So when someone says ‘you don’t have that right, it’s not in the constitution!’ I want to twhap the little fucktard and tell him it’s not in the governments ability to limit that right.

  21. Change the immigration laws to let the governmet sumarily deport people suspected of having ties to terrorists groups and send his miserable ass back to Quatar and let them deal with him, where he can disapear and no longer be a problem. It is not that hard. You don’t need to throw out the Constitution to do this stuff.

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

    how soon they forget.

  22. Grey Ghost,

    Somebody with the stomach to support torture should have the stomach to write “torture.”

    Anyway, under our laws, we cannot deport someone if we have good reason to believe they will be persecuted, tortured, or killed.

    So deporting suspected terrorists is either stupid, or it’s illegal and immoral.

    Try ’em, lock ’em up.

  23. I’m going to play conta of John Rhoads post.

    First, person and people could be interchangeable. People, is defined in the first the words of the Constitution as “we”. This probably means the citizen of America. However I can go further that many of the rights were not afford to women or slaves at that time. I guess it could be argued that they were less than citizens then and they were not part of the “we”.

    The better arguement is that justice is an unalienable right for all people everywhere. How can we cry injustice by any government if we believe justice is relative to what the host government wants to call it? Hitler would have not done anything wrong if justice is realive to what the leader of a country wants to call it.

    However, all this is moot. The reason we give forgieners equal due process under our Constitution is reciprocity. We expect the same due process when our citizens are visiting other lands.

    Reciprocity under Bush admin policy means any country can declare a US citizen in their country a enemy combatant, and detain them in secret forever. Is that how we really want the world to work?

  24. TrickyVic,

    Yes, Amendment V also likely lacks a clear cut solution because “person” and the like probably did not apply to two at least two classes of persons who resided within the borders of the U.S. at the time of ratification – slaves and First Americans. Indeed, with regard to slaves that was indeed part of the argument (if I recall correctly) in Dred Scott – something which the 14th Amendment had to remedy.

  25. I think the biggest problem with deporting these people is that their home countries refuse to accept them back.

    It’s not like we can just fly over Egypt or Qatar and shove them out the plane door.

    Appealing as that might be.

    To some.

  26. The Fifth Amendment requires due process before any of the following can be done to a person:

    (1) “held to answer for a capital, or otherwise infamous crime”

    Being deported to your home country is not being held to answer for a capital or infamous crime, so this doesn’t apply.

    (2) “deprived of life, liberty, or property, without due process of law.”

    Being deported is not being deprive of life or property. The only way a deportation would trigger the fifth amendment is if it amounts to the deprivation of liberty.

    Being sent home is hard to justify as a deprivation of liberty. Liberty generally doesn’t include the right to engage in illegal activity, so unless you have a right to be in the US (as a citizen or legal immigrant), deporting you is not depriving you of liberty in any meaningful sense of the word.

    Now, should there be some process before deportation? Sure, but I don’t think the Fifth Amendment requires the full panoply of due process for it.

  27. Joe, you’re right. I should have written torture rather than tried to be cute. It’s an ugly thing and it deserves to be addressed directly, in stronger terms than “blood-soaked”.

    I believe you are correct that our laws prohibit deporting someone if they will be persecuted, tortured or killed on arrival. However, isn’t that something the US does all of the time, with regards to Cuban and Chinese immigrants that don’t make it to land? If your argument then is that the US shouldn’t deport them either, I’d agree with you.

    To address TrickyVic’s post of 4:57, “However, all this is moot. The reason we give forgieners equal due process under our Constitution is reciprocity. We expect the same due process when our citizens are visiting other lands.”

    We often do get the same due process as foreign citizens, when our citizens are visiting foreign lands; the problem is that many of those foreign lands have little or no due process at all. See Nelson v. Saudi Arabia, 507 U.S. 349, (and these are our “friends”!).

    I’ve enjoyed the conversation very much; you all have given me a lot to think about and have caused me to question my views.

  28. R.C. Dean,

    …illegal activity…

    This is always the kicker. The determination of this and how it is determined is it seems of great importance.

  29. If the constitution doesn’t protect the rights of foreigners it should, and somebody should propose to amend it. Some other countries’ constitutions now state this explicitly (the Dutch constitution, for instance, provides for equal treatment in equal cases of those “within the territory”), but I’m pretty sure that it is implicit in the US constitution. In this day and age, when the world is slowly recovering from a century of nationalism, it is about time that countries start dealing with each other as independent and sovereign but friendly and cooperative trade partners, and not as angry little children bickering over some imaginary zero-sum pie.

    I’m a little confused by some people’s comments about “minimal” due process and “the full panoply” of due process. WTF? So part of due process is actually useful, and some other part of it is just window-dressing that gets added on as a bonus for citizenship?

  30. We agree. There’s actually very little a court can do about people working as foreign agents.

  31. For the record, I was mostly agreeing with these parts of John’s post:

    These guys are not supermen requiring extordinary powers to deal with….You don’t need to throw out the Constitution to do this stuff. It is truly amateur hour up there and espeically DOJ these days.

    The parts in between I’m less than enthusiastic about, but even there I see the point that there are plenty of ways to deal with terrorists without holding them forever without trial.

  32. First, person and people could be interchangeable. People, is defined in the first the words of the Constitution as “we”. This probably means the citizen of America. However I can go further that many of the rights were not afford to women or slaves at that time. I guess it could be argued that they were less than citizens then and they were not part of the “we”.

    I think this argument is pretty specious. It’s like saying if I used the word “he” to refer to one person in a novel, and then used the word “he” to refer to another person several pages later that the second “he” is the same person as the first “he.” To claim that the word “person” specifically refers to a member of the United States, you would have to assume that by writing “we the people of the United States” you are explicitly making the claim that only people of the United States are people. In logical terms, the statement is specifying a subset of the larger set of people. When an example is then later taken from the set of “people”(as it is in the 5th amendment) you would really have to assume that it is a case of universal instantiation.

    Yes, Amendment V also likely lacks a clear cut solution because “person” and the like probably did not apply to two at least two classes of persons who resided within the borders of the U.S. at the time of ratification – slaves and First Americans

    This is just further evidence that the US Government does not have a particularly good history of following its own laws. (except, arguably, in the case of slavery, as in the constitution slaves were explicitly identified as not having full “person” status…i.e. the 3/5 compromise. This wasn’t a particularly logical solution, but it is an arguably legal one).

    Being deported is not being deprive of life or property. The only way a deportation would trigger the fifth amendment is if it amounts to the deprivation of liberty.

    If you can think of a way to deport someone without depriving them of liberty, I’d like to hear it. When you detain someone for any period of time, you are depriving them of liberty. If you detain them without any intention of trying them, then you are depriving them of liberty without due process of the law.

  33. You also have the same problem with due process of illegal immigrants that you have with terror suspects. The whole purpose of due process of the law is to determine whether or not someone is in fact guilty of a crime. Even if terrorists or illegal immigrants are not entitled to due process of the law, that same process you are denying them is exactly the legal procedure of determining that they are in fact a terrorist or an illegal immigrant. Put another way, what would stop the government from claiming that an American citizen is an illegal immigrant and deporting him if he is denied due process of the law?

  34. “I am all for Constitutional protections, but the idea that anyone who is here illegally or as a resident alien has some inalienable right to due process beyond what Congress and the President wants to give them is just bullshit. If you really think someone has ties to terrorism and they are a foreign national, the government ought to be able to deport them. Deportation is not jail. It should not be that hard to do, but alas it is.”

    Are you all for Constitutional protections or are Constitutional protections bullshit?

    …and who argued that the government shouldn’t be able to detain foreign nationals with ties to terrorism?

  35. Also would like to point out that at the time the Constitution was written down, there was a lot of stuff that was not written down because it was considered derived from “Natural Law” and thus obvious. Presumption of innocence, protection against double jeopardy, right to confront one’s accuser, right to hear evidence against one, etc., etc., and so forth.

    Scary to realize that in certain respects people had more rights under the Inquisition (yes, THAT Inquisition) than they do under certain peoples’ present interpretation of the US Constitution.

  36. Grey Ghost,

    Better examples would have been El Salvador or other dictatorships we backed during the 80s. The feds would routinely deport union leaders and political activists who would be executed upon arrival. I don’t believe ordinary immigrants we deport to Cuba and China are killed or tortured. I certainly hope not; if so, we shouldn’t be. Perhaps in the case of political dissidents, and I certainly believe we shouldn’t be sending them back. Persecuted? There would seem to be some grey area if they are facing a fine or even a week in the pokey for illegally emigrating. Is that persecution under the law? I don’t know, maybe.

  37. “Put another way, what would stop the government from claiming that an American citizen is an illegal immigrant and deporting him if he is denied due process of the law?”

    “What would prevent you from plucking up anyone and saying, ‘You are an enemy combatant?'”

    These are excellent questions. Indeed, my understanding is that the 7 July Bombings in London were committed by British citizens.

    If the President can declare people “enemy combatants” and be done with it, why should he limit himself to foreigners?

  38. I’m not a lawyer although I sometimes play one on Hit & Run. …but I am aware of Ex parte Milligan.

    “In essence, the Court ruled that military tribunals could not try civilians in areas where civil courts were open, even during times of war.”

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

    Every time one of these discussions comes up, I think of Ex parte Milligan. Why isn’t that case applicable here?

  39. Oh, and along the lines of what grumpy realist wrote above…

    This is a legal discussion, so, for discussion purposes, I’m willing to give a pass to the idea of Constitutional rights, but just for the record, I wholeheartedly reject the suggestion that my rights or anybody else’s rights originated from some government document.

  40. Ken, you said it better than I could.

  41. Ken Shultz,

    From whence do rights come? As far as I can tell rights are based on human agreements and human experience.

  42. “””To claim that the word “person” specifically refers to a member of the United States, you would have to assume that by writing “we the people of the United States” you are explicitly making the claim that only people of the United States are people.”””

    Not at all, because of the scope of the document. The Constitution was the framework for our government, not a world government. So the “we the people” on the US Constitution would cover only those within the new government’s scope. That would exclude everyone not an American.

    If it was meant to apply to every single person in American is debateable because subsets of Americans were excluded in practice. The 14th amendment corrected that.

    “”Also would like to point out that at the time the Constitution was written down, there was a lot of stuff that was not written down because it was considered derived from “Natural Law” and thus obvious. Presumption of innocence, protection against double jeopardy, right to confront one’s accuser, right to hear evidence against one, etc., etc., and so forth.””

    One would think that’s something the average citizen would understand. It’s so civil society 101.

    “””This is a legal discussion, so, for discussion purposes, I’m willing to give a pass to the idea of Constitutional rights, but just for the record, I wholeheartedly reject the suggestion that my rights or anybody else’s rights originated from some government document.”””

    Ken, I like the way your thinking on that. However, A government can take away any right it wants, be it from man or god. At least, temporarily until rebellion. Therefore you need legal paperwork to keep government in check.

  43. “From whence do rights come?”

    They come from joe, mostly.

    “As far as I can tell rights are based on human agreements and human experience.”

    We’ve had this conversation before. I could argue that they come from God or that we inherit them from our ancestors. I could argue that they’re a consequence of taking responsibility–the flip side of taking responsibility… I have pretty good arguments for all that, depending on whatever assumption you want to start with. I just wanted to point out that contrary to a comment above:

    “I am all for Constitutional protections, but the idea that anyone who is here illegally or as a resident alien has some inalienable right to due process beyond what Congress and the President wants to give them is just bullshit.”

    People have rights regardless of what Congress or the President says. …unless we’re talking about the law, thinking of Dred Scott, et. al., I’d add regardless of what the courts say too.

    “However, A government can take away any right it wants, be it from man or god. At least, temporarily until rebellion. Therefore you need legal paperwork to keep government in check.”

    I appreciate that, and I consider myself an ardent defender of the Constitution. It’s what I mean when I say I’m patriotic. …and I didn’t want to divert the thread–I really want John (or someone who agrees with him) to answer my questions above.

    But yes, lawyers need paper, and puttin’ it down on paper is an important thing. …and when we’re talking about rights in law, we need to reference that paper. But I also think its important to point out, especially in a libertarian forum, that while I’m willing to make certain assumptions for discussion purposes, my rights aren’t a piece of paper any more than my reflection in the mirror is me.

  44. Not at all, because of the scope of the document. The Constitution was the framework for our government, not a world government. So the “we the people” on the US Constitution would cover only those within the new government’s scope. That would exclude everyone not an American.

    I don’t buy this either. They are ordaining and establishing a government and setting up rules for said government. If non-Americans are not covered within the scope of that definition, then, by definition, the US government could have no interaction with those people. Clearly there are times in which governments have to interact with non citizens, so I don’t see an implication to that effect at all. Certainly there is nothing in the preamble that suggests that the government it is about to create would only offer protections to citizens. I quote:

    “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

    In this sentence “the people” refers to those who are ordaining and establishing the constitution. There is nothing in this sentence that suggests or implies that the government it is establishing would only interact with American citizens.

    It is certain that constitutional rights were not intended to apply only to citizens, given that it was created based on the idea of natural rights, but as several others are doing I’m pretending that we have no prior knowledge of the intent of the people writing the document. Even given this concession, it seems a huge logical stretch to interpret the phrase “person” in the fifth amendment as only applying to citizens and very natural to interpret it as applying to all people. It is what the sentence taken by itself means, after all. To argue that a minor contextual point written on a different day (the bill of rights was added to the constitution later) at the very beginning of the document, that is explicitly only commenting on who the creators of the constitution is, seems like a huge logical stretch. Put another way, I don’t have to work very hard to validate my interpretation; it’s a simple textual quotation. You have to go to language not contained within or even close to the amendment, make a claim that this text suggests who is under the jurisdiction of the government (a debatable claim at best) and then claim that such language applies throughout the document.

    What’s more, text in other amendments specifically does not use words like “person” or “people” but only makes statements about what government can do.

    Amendment 6:
    “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

    Note that the reference is to the rights of the accused. Is this word accused in some way still tied to the idea that “we the people” established this document. Even accepting the idea that the word “person” in the fifth amendment is meant to imply just the same set of people that established the government (which incidentally would imply that no one currently living is protected by the constitution) how could you argue that “the accused” is meant to apply to that set of people. If you “accuse” someone of not being a citizen, then logically that person becomes “the accused” regardless of what the actual status of their citizenship is. This goes hand in hand with the notion I mentioned in my earlier post that the whole purpose of due process is to determine the legal status in these situations. In our legal system, facts are legally determined as a result of due process. Even a confession of guilt is not legal “fact” until it occurs in court. Without due process, citizenship would not even be legally determinable, meaning that even if due process is not intended to extend to non citizens, it must still be given to determine the citizenship status of the accused.

  45. Being sent home is hard to justify as a deprivation of liberty. Liberty generally doesn’t include the right to engage in illegal activity, so unless you have a right to be in the US (as a citizen or legal immigrant), deporting you is not depriving you of liberty in any meaningful sense of the word.

    How do you prove that the person you’re deporting (and forcibly moving someone is a deprivation of liberty) is engaging in criminal activity without due process? That’s the system we have, you are accused of a crime, you have the right to due process and if (and only if) you are found guilty you receive the appropriate punishment. Whether it’s deportation or imprisonment, doesn’t matter, but it happens AFTER due process.

  46. You know, at first I was thinking that it makes sense to have a lower burden of proof for deportation than imprisonment…provided that the deportee is sent to a country of his choice (if that country will take him, of course). That way, if somebody doesn’t want to go to the despotic hellhole that he came from, he can go to Canada or the Netherlands or whatever (if they’ll take him).

    Sending somebody to Canada is clearly less of a violation than sending somebody to a “pound me in the ass prison.”

    But then I started thinking about this lower burden of proof. It basically means that somebody has to work to remain above suspicion. Otherwise they could kick him out of his home, uproot him from the career that he’s worked hard to establish, take him away from the company of new friends that he’s become close to, and send him away from all of that just because they had a suspicion that they couldn’t necessarily substantiate.

    Now, nobody likes the idea of a genuine bad guy getting off because a prosecutor didn’t have quite enough evidence. But I don’t want an innocent, hard-working immigrant to lose his home, his career, and his friends just because some prosecutor had a strong suspicion that he couldn’t back up. I’d rather make the prosecutor work harder than make the innocent guy be even more on his toes.

    Besides, what does it mean to have “suspicions of terrorist links”? It could mean that you know a guy who knows a guy who knows a guy, and when he comes to you at the mosque and claims to be collecting money for charity you make a donation. It could mean that you’re a science professor who mentors a student with a strong interest in chemistry, having no idea what he intends to do with that chemical knowledge. It could mean that you know a guy who knows a guy and you helped him wire money to somebody who you thought was his impoverished cousin overseas. (Or, even worse, helped him buy Sudafed! 🙂

    It could mean any number of things regarding the people who know people that you know. In a world with six degrees of separation, I’m not about to support uprooting somebody from his home, his job (perhaps even a business that he built himself!) and his friends just because he knows a guy who knows a guy, and at some point helped him wire money or whatever.

  47. BTW, if there’s an innocent, hard-working, decent immigrant who happens to know a guy who knows a guy doing something bad, the last thing I want to do is turn that innocent, hard-working, decent guy against the US. He knows the culture, he knows the language, and if he’s a decent, hard-working guy then he shares our values. He’s exactly the sort of person that we need on our side.

  48. “People have rights regardless of what Congress or the President says.”

    Rights are a social construct. So it is less what the President or the Congress wants and more how those rights are worked via various social interactions.

  49. From whence do rights come? As far as I can tell rights are based on human agreements and human experience.

    Once again, the Declaration of Independence:

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

    What part of “all men are created equal” is difficult to understand?

    Now, from the Constitution, Article III:

    Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

    Not the president or anyone else in the executive branch.

    Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;- between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

    Note “and foreign States, Citizens, or Subjects.”

    The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

    “Trial by Jury,” not by “military court.” From Article I, Section 9:

    The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

    There is no “insurrection.” We are not currently being “invaded” and the prisoners in question weren’t even captured on U.S. soil. It is the president’s position that in order to fight terrorism we must be able to hold these “enemy combatants” without giving them a hearing where the government must provide minimal evidence that they are indeed “enemy.” As we’ve seen in a number of cases, there are prisoners in Gitmo where the government cannot meet even that minimum standard. Our Constitution demands their release.

    In the case of any emergency it is ever the government’s first response that individual civil rights are a liability hindering the government’s ability to protect us. “I believe in the Constitution but…” is always the cry of the man on the white horse.

    History (most recently the chapter on New Orleans) has repeatedly shown that the opposite is true; that individual rights are our primary protection during “emergencies” and that we have more to fear from government than from foreign powers.

  50. What part of “all men are created equal” is difficult to understand?

    A statement clearly not including slaves or women at the time.

  51. Due process should be accorded only to those who deserve it. Why should the guilty get a fair trial?

    I have run across this line of thinking before; I trust there is no need to refute it here.

  52. “””They are ordaining and establishing a government and setting up rules for said government. If non-Americans are not covered within the scope of that definition, then, by definition, the US government could have no interaction with those people. Clearly there are times in which governments have to interact with non citizens, “”””

    Not at all, it has little to do with interaction. You seem to confuse the establishing of a government and the laws within, with the interaction of people from other lands. Your argument doesn’t make sense.

    By your own wacky way of looking at it, sovereign nations would not exist, the world must have the same government as “we”. The Contitution is not a document for the world, it is a document for OUR country. Therefore it covers US.

    “”””We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

    In this sentence “the people” refers to those who are ordaining and establishing the constitution. There is nothing in this sentence that suggests or implies that the government it is establishing would only interact with American citizens.””””

    Again, it’s not about interaction with others.

    Who is the “ourselves” and the “our” they are talking about? The words “for the United States” ought to sum it up for you.

    Ourselves by definition, excludes “them”, whoever “them” is.

    There is no other way to rationaly interpet “for the United States” or than applying only to the United States”. It does not say for the world, or all people of the earth. The scope is clear. Regardless of what you say.

    I am not arguing that forigeners in our country do not get Constitutional protection. My point is that protection is not derived by the Contituition its self per se, but by us allowing it to apply in their court cases for over a 200 years.

    We believe there are “unalienable” rights. Hebeas Corpus being one. (well the current administration and the AG does not) But that’s in the Declaration of Independence, not the Constitution.

    Yeah Thoreau, That sould some it up. It is know than some in gitmo are there because some warlord told them they were the enemy, and was paid for it. The payments raise some doubt about the truth of the warlords statement. The Bush administration needs the ability to allow the use of, and the ability to execute on hearsay evidence as a result of how some were “captured”.

    It’s as if they are willing to take innocent lives just to save face. Human rights issues aside, I see a big problem with the quality of our buisness.

    Isn’t the desire for quality a cornerstone of Americanism? Maybe that’s just a myth.

  53. “””I am not arguing that foreigeners in our country do not get Constitutional protection. My point is that protection is not derived by the Constituition its self per se, but by us allowing it to apply in their court cases for over a 200 years.””””

    Comment on my comment.

    I can’t say over 200 years with certianty. I don’t know the year of the first foreigner’s trial where the Constitution applied. I’m ass-u-me-ing and using good faith. That was bad of me. In reality, we probably were not that good. How what rights at trial were provided to the Chinese immigrants that were building our railroads. The Irish?

    There is often a big differnece between theory and practice.

  54. “”How what rights at trial were provided to the Chinese immigrants that were building our railroads. The Irish?””

    That should have said What rights were provided at trial for…

  55. TrickyVic,

    Since the Congress has the power to suspend habeas corpus under certain circumstances it seems that it is “alienable.”

  56. Could some of this be a mincing of words? Are there not both “rights” in law and our inalienable “rights”. Some might argue that people retain their right to liberty, for instance, even after they’ve been incarcerated. It’s just that under certain circumstances, i. e. conviction via due process, we permit those rights in law to be violated legally.

    …If I was sittin’ in prison, I might not appreciate the nuance, but then again, the idea that I retained my rights even as a convict might be really important to me.

    I’ve argued in the past that people surrender their rights in law voluntarily–that if we’re free to do that for which we’re responsible and responsible for what we’re free to do, then when we surrender our responsibility voluntarily, by committing a crime for instance, we surrender our right to freedom too. …at least as far as the law’s concerned. So we have jury trials, etc. to determine whether people voluntarily forewent their right to liberty. …their right in law, that is.

    “Since the Congress has the power to suspend habeas corpus under certain circumstances it seems that it is “alienable.”

    My understanding is that, according to the case I linked above, civilians cannot be subjected to military tribunals so long as civilian courts are still operating–even when habeas corpus has been suspended. …which, to me, seems to suggest that if the accused is a civilian, he has a right to due process in a civilian court–regardless of what the President says.

  57. “…according to the case I linked above, civilians cannot be subjected to military tribunals so long as civilian courts are still operating…”

    The case in question dealt with citizens.

    Recall that in WWII a group of foreign nationals and citizens were tried and also executed (well most of them were) via military commissions. The Supreme Court did review their case, but found that the use of such procedures were acceptable (see Ex parte Quirin).

  58. Not at all, it has little to do with interaction. You seem to confuse the establishing of a government and the laws within, with the interaction of people from other lands. Your argument doesn’t make sense.

    By your own wacky way of looking at it, sovereign nations would not exist, the world must have the same government as “we”. The Contitution is not a document for the world, it is a document for OUR country. Therefore it covers US.

    This is neither stated nor implied by anything I said. When a non-citizen is on our soil, that non-citizen is considered to be bound by our laws. The ability of a government to deal with say a foreign murderer that murders an American citizen is not destroying the sovereignty of other nations. If I go to Singapore and spraypaint the wall, I’m gonna get caned, even if the US government would not do the same thing. Our country’s government needs to have some mechanism for dealing with non-citizens (as all governments do). At this point you are basically saying that “it’s obvious” that the constitution doesn’t apply to non citizens. I’m actually explicitly stating that the “we” that is establishing the government is *not* in any way making a statement about who that government will interact with, so in that sense we agree: the fact that it is “we the people” establishing the government has no bearing on who the established government will interact with. As such, it does not limit the scope when the words “person” and “accused” are used later in the constitution. “person” means what it means in any general context, an example picked from the set of all people. (read not necessarily citizens). The “ourselves and our posterity”‘ line that you quote, is again not dealing with the juristdiction of the government; it refers to the motivation for the establishment. Basically, the preamble is legally irrelevant is my argument. It says who is creating the government and why, but it makes no statement about who that government will have jurisdiction over. Can you explain why you think the word “person” or the word “accused” in the fifth and sixth amendments specifically reference non-citizens? If you are not arguing that it is due to a scope limitation in the preamble, then I’m really not sure where that notion is coming from.

  59. trickyVic,

    By your logic, none alive today are “persons” according to the Constitution, since none of us were involved in “ordaining or establishing” that document.

    Also, referring to “the people of the United States” implies that there are other people/persons who are NOT of the United States; otherwise the prepositional phrase would be redundant.

  60. Recall that in WWII a group of foreign nationals and citizens were tried and also executed (well most of them were) via military commissions. The Supreme Court did review their case, but found that the use of such procedures were acceptable (see Ex parte Quirin).

    Mighty daunting prospect, I think, that the President could have citizens–not exactly civilians in Ex parte Quirin–summarily executed by executive order. Still, I suppose there was little question in that case about whether the accused were in fact military operatives, and I think that’s an open question here.

    How do we know this guy was Al Qaeda?

  61. Mighty daunting prospect, I think, that the President could have citizens–not exactly civilians in Ex parte Quirin–summarily executed by executive order.

    Actually, the President was empowered by the Congress in that circumstance. That’s part of the lesson of the case.

  62. Change the immigration laws to let the governmet sumarily deport people suspected of having ties to terrorists groups and send his miserable ass back to Quatar and let them deal with him, where he can disapear and no longer be a problem.

    We are discussing here people who were detained in a foreign country (Iraq) and taken by force of U.S. Military arms to another country (Cuba) where the president assures us they have no Constitutional Rights because they are not on U.S. soil.

    Since they are acting under duress supplied by U.S. government agents and have never entered the United States, explain how immigration law applies. Show your work.

    Regardless of citizenship, etc. our Constitution, Article III Section 2, reserves for the judiciary the duty to try all cases “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,”…”to all Cases of admiralty and maritime jurisdiction;”…”to Controversies to which the United States shall be a Party;-” and “between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

  63. “””trickyVic,

    By your logic, none alive today are “persons” according to the Constitution, since none of us were involved in “ordaining or establishing” that document.”””

    I think you get that from this passage

    “”In this sentence “the people” refers to those who are ordaining and establishing the constitution. There is nothing in this sentence that suggests or implies that the government it is establishing would only interact with American citizens. “””

    That was written by John Rhoads.

    I’ve made no example that excluded any citizen from the Constitution. My point is that there is nothing in the Constitution its self that says it applies to foreigner. That does not mean foreigners are exempt, I’ve been trying to point out that in the past, foreigners at trial have recieved the same rights as Americans, albeit not consistantly.

  64. “”TrickyVic,

    Since the Congress has the power to suspend habeas corpus under certain circumstances it seems that it is “alienable.””””

    I was speaking of what I believed the founding fathers believe. Of course I could be wrong. I based that from nothing in the original Constitution (minus the bill of rights) that gives you the right, but it does state when it would be ok to deny that right.

    Personally I’m not sure about unalienable rights. I would like to say they exist, but history has show that governments have the ability to give or take away any right it sees fit making the concept of unalienable pretty much moot.

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