This article is primarily about a comparison of the roles of the American and German Supreme Courts, but it also explains some of the fundamental differences between the concepts of rights in both countries. As far as I can tell, the situation is similar in at least some other European countries.
Americans have always had freedoms both put aside and taken away during times of warfare. Lincoln suspended habeas corpus after all, and lots of people were arrested during the ACW for speaking out against the Union.
Dictatorships have an innate advantage when it comes to to times of conflict, decisions are made faster because the dictator makes decisions and does not need the approval of anyone else. The dictator can also silence any opposition to his actions almost instantly. In the U.S. it is without doubt that our system slides closer to a dictatorial model during times of warfare, and I think that is by design.
Look at the historical record. The executive has always had the ability to take extremely powerful actions during times of crisis. Furthermore, the SCOTUS and the Congress have both historically “stepped aside” to a large degree during times of warfare because they do not feel it is their proper role to be involved, that the country needs strong, decisive leadership. Obviously if the President is not a strong or effective leader problems will arise, we’ve been somewhat lucky that most of our wartime Presidents have been strong and decisive leaders (Lincoln, Wilson, Roosevelt.) You start to see some failings to the system in quasi-wars like Vietnam, Johnson and Nixon were both strong and decisive leaders but that really didn’t help too much.
The real test will always be sliding back out when the war is over, and so far we’ve done a pretty good job of it, time will only tell if that is the case in this particular era (I think early signs are promising–keep in mind a lot of the most maligned powers Bush has increased eventually expire.)
The sedition acts (both the one you mentioned and the one passed during the administration of our second President) are looked at as lessons today. Lessons about how America can fail and be susceptible to panic. Most people view them as lessons to learn from and most current legal scholars do not support those decision taken many years ago.
The United States does not have any unlimited rights nor does any other country. I have yet to see any country with the significant freedom of speech rights that the United States has. Slander and libel are actionable virtually everywhere in the world, but actually winning a slander or libel case is extremely difficult in the United States.
Furthermore, we are the country that allowed a private newspaper to publish classified documents from the Pentagon that were stolen, and are also the country that allowed a private magazine to publish diagrams and information concerning how to build a nuclear weapon during the height of the Cold War.
Hate speech laws are, also, virtually unheard of in the United States.
In France, holocaust denial is indeed a crime. Denial of the Armenian genocide has also been added some months ago (France is, I believe, the country with the largest Armenian minority, or at least one of the largest).
Also : incitment to racial hatred is a crime. One year ago or so, hate speech against homosexuals has been added too.
Apology of nazism , and also of war crimes are crimes too (also : mein kampf is banned, and so are nazi memorabilias). For instance a former general was sentenced a couple years ago for defending in a book the use of torture during the Algeria war.
Protection against slander and libel is, I believe more extensive than in the USA. Public insults can get you sued. Including insults published in, say, a blog.
Protection of privacy also trumps freedom of speech. Truth isn’t necessarily a defense (actually, it being a defense is the exception rather than the norm I believe, though not absolutely sure) if you publish informations about my private life (say, that X is my lover). Actually, merely publishing my picture without my agreement can get you in troubles.
A poster stated that these concepts, in his opinion, are considered outdated. At least here, I don’t think it’s true. These laws are widely supported (as proven by the fact that new ones are still passed :armenians, gays, etc…) and people advocating their abolition are quite rare and regarded with suspicion (in particular regarding holocaust denial, or hate speech).
Basically, the mindset is very different. These aren’t perceived as infringements of the freedom of speech, but as legitimate protections against harmful actions. People generally think that you have as much right to insult me publically, or to state that I belong to an inferior race because you want to express your opinion as you have to punch me in the nose because you want to stretch your arm, and as much right to disclose informations about my private life because it’s true as you have to visit my backyard because it’s there.
Personnally, I’ve only an issue with laws against revisionism, because I don’t like the concept of “official history”. I think history is the domain of historians, not lawmakers. I also think the ban of “mein kampf” is absurd, given the historical importance of said book. I’ve no issue with the rest (laws about hate speech, apology of war crimes, protection of privacy, etc…) and actually support them. As mentioned above, I don’t think you have the right to insult me (or the group I belong to) anymore than you have the right to punch me. I’m sure that many american readers will find this position wrong, for the same reasons I think, for instance, that the US president making references to god or calling american people to pray, or people swearing on a religous bok in court are blatant and unnaceptable offenses against the separation of church and state : cultural reasons.
As a result,I of course disagree with the “have the balls to give the the rights…” of your title. It’s not about having the balls, it’s about what is deemed unnaceptably harmful. Once again, I could equally state that the USA don’t have the balls to actually enforce the separation of church and state, or to implement an actual rule of law since it has been recently shown to the world that legal protection in the USA is deemed a priviledge granted only to american citizens and not an universal and unalienable right all people must benefit from (I couldn’t believe this one to be true when I joined the board and saw it mentionned for the first time here, and even laughed at the poster. I had always assumed that in all western democracies these protections extended to everybody and I found it very shocking that thy didn’t in the USA. Still, I assumed this difference between aliens and citizens was merely theorical ad wouldn’t ever past muster, nor in the public opinion, nor in courts, if implemented in practice. Events following the 9/11 showed that I was sorely mistaken).
People who are accused of a crime committed within the jurisdiction of the United States are entitled to all of the rights and protections of a U.S. citizen. If you were to visit the United States you would likewise enjoy almost all of the rights and protections that a U.S. citizen does. There are obviously some that you would not enjoy, for example the right to vote, and as a non-citizen you can be deported (citizens cannot be), but that is a standard discrepancy between the rights of aliens and citizens in every country of which I’m aware.
I’m curious as to what you are speaking about when you say that legal protection is only granted to citizens, because that is just not the case.
I think he’s getting confused with the Military Commissions Act 2006 which explicitly removes the right from alien ‘enemy combatants’ and in some provisions suggests from citizen EC’s as well by the omission of the tern ‘alien’ from the particular clause.
So - Bush could decide that a charity fund-raiser is providing material support if there is a suspicion that such monies are being diverted. I don’t know about you but I wouldn’t trust Jesus with such broad discretion let alone any politician.
Yes, and as your quotes point out that act is set up to deal with alien enemy combatants (I’ve read the act and any claims of its applicability to non-combatants or U.S. citizens is false.) These are persons captured under very unique circumstances and this is the sort of law that every country I’m aware of uses during times of war to deal with enemy saboteurs and etc. that are captured on their soil. More broadly the act is primary designed to deal with persons captured overseas.
Using this as an example that the protections of the constitution does not extend to aliens is disingenuous. Enemy combatants are a special case and during times of war no country I’m aware of treats enemy combatants as simple common criminals caught robbing a convenience store. Every country I’m aware of that has fought a major war locks up enemy combatants in camps, and has dealt with said combatants that have committed criminal acts using special tribunals and not the normal justice system of said country.
I certainly know this was SOP for European powers during WWII.
Charities often are fronts for terrorist activities but I find your characterization of how Bush could randomly come down on some random charity to be inaccurate.
Until it is tested in court neither you nor I can say what the scope is. And I have no faith in politicians of any ilk to not exploit any loophole they can find. Particualry not one who lied a country into a war.
Except for the fact that I could be arbitrarily arrested and detained without charges and without access to a lawyer for any reason whatsoever…
This is a recent issue, but when I first faced this concept here, it was before 9/11, and posters made clear that indeed, even at this time, an alien had no constitutional protection against arbitrary arrests, etc… and that the USA could at any time pass a law depriving aliens from such rights. It proved to be clearly true. The detention of people of Japanese origin during WWII, for instance, was an issue only because they were american citizens.
This can’t be in my opinion be equated with the lack of right to vote, etc… (you’re not making this point, but some posters did in the past). It’s rather the denial of what I hold to be a fundamental right like the right to live, etc… One shoulnd’t be able to arbitrarily detain an alien any more than one should be allowed to murder him or hold him for ransom.
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Sheesh, what kind of computer are you using?? Or does the puppy keep yanking out the power cord or something?
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So, do Americans have an unfettered right to sell, buy and transmit pornography?
You’re simply incorrect. If you were to visit the United States you could not be arbitrarily arrested and detained. You could be detained for reasons that U.S. citizens could not be detained.
For example if it was discovered you were here on an expired visa you could be detained until you were deported, it would not be arbitrary, however.
Anyone on these forums who asserts aliens do not have protections that Americans do in our criminal justice system are simply incorrect, the SCOTUS has made this clear many times in the past.
There is a big difference between an alien who is just visiting the country however and an alien who happens to be a German saboteur during WWII. The latter is dealt with via military authorities and that is why there is a difference in the rights involved (U.S. soldiers have significantly fewer rights within the military justice system than civilians do in the civilian criminal justice system.)
The classification of persons arrested in the United States as enemy combatants is not an arbitrary one, and to do say so ignores actual legislation.
Also, anyone can be denied the right of habeas corpus (meaning they can be arrested and detained without cause), not just aliens. The constitution specifically allows for suspension of the writ, and Lincoln made use of this provision during the civil war.
I think the Canadian man that was arrested at JFK and sent to Syria to be tortured would beg to differ.
I’m not sure, that is mostly governed by state and local laws so I think it’s impossible to generalize.
There are limitations on child pornography.
Obscenity can actually be regulated, but court decisions in the middle of the 20th century significantly limited the actual ability to limit speech based on its obscene nature.
He wasn’t arrested and charged with a crime he was detained and deported, that’s a wholly different situation than being arrested and held without cause. He wasn’t held without cause he was being held until he was deported.
You are correct that an American cannot be deported but neither can a Canadian be deported from Canada, but I, as an American, can be deported from Canada. This is not because of any sort of fundamental injustice in the Canadian legal system but rather an innate difference that must exist between residents/citizens and non-residents.
The definition (as previously provided) is as broad as the grand canyon and has a huge element of political discretion and once the president has defined someone (or even if they are ‘pending’ a designation’ this it cannot be challenged before a judge so you’ll just have to forgive us if we don’t share your complacency and faith in the Solomon-like wisdom and Ghandi-esque self restraint of Bush or any other politician.
He was not deported. He was handed to Syria for torture not sent back to Canada.
You could say the same thing about the white supremacy movement here in the US, with the outcome being different. The US values absolute freedom because once you start down the ‘but its to ensure social stability’ path, there is no stopping. A majority party could say that one of the minority party’s views are damaging to the social stability. And look - there’s precedent for it because of the Holocaust denial stuff. What happens in these nations when the line gets pushed further? Why are those nations afraid of Holocaust deniers? Its not like people will stop denying the holocaust just because there’s a law against it - it just pushes their groups underground and solidifies their beliefs because of the whole persecution complex. Laws that attempt to regulate people’s minds or their thinking don’t work and are destructive in a free society.
You must think awfully little of your fellow citizens if you think a few people who spout a view with no factual basis have the potential to completely destabilize your nation. I suppose this is the main difference that you were talking about. Americans believe more in their fellow citizens and less in a paternalistic government.