What is your basis for the belief that it is a “Constitutional right” or a “check and balance” which the government is violating here?
Have you read, and understood, Dames & Moore v. Regan; Curtiss-Wright, United States v. The Three Friends; Stewart v. Kahn; and The Prize Cases?
In light of those cases, and in light of the Fourth Circuit ruling, how can you say that Ashcroft’s actions are undoubtedly unconstitutional?
To be fair, the Fourth Circuit did not accept the government’s invitation to declare the unfettered government power constitutional. What they did was note that the district court had erred in reaching the opposite conslusion with no hearing, and remand to that court for a hearing. Ashcroft’s position is not without support in case law. But it is far from proved. The Justice Department has abided by all laws. They are not required to simply accept a district court ruling; they are permitted to appeal when they believe an error was made. In this case, the circuit court agreed that an error was made.
So, again, what is the basis for your claim that a constituional right, or a check-and-balance, was violated?
Bricker, I am curious to know both what you think of the state of our current constitutional protections, whether our current executive branch respects the power of any of the other branches.
Do you believe that the same administration that will ask for internment camps for citizens will ask for a declaration of war from congress before attacking Iraq?
Thank you, Bricker. Now that you’ve used short, explicit sentences that an uneducated soul such as myself can understand, I will actually read your words.
Now, Bricker.
Read mine.
Nowhere in my two posts did I say Ashcroft is acting outside the letter of the law. If you’ll read my first post which so grabbed your attention, you’ll see I was simply stating what the DOJ seems to be arguing in court.
My post points out they are not refuting Hamdi’s citizenship, but are arguing they have the perogative to hold him whether he is a citizen or not. Just because I used inflammatory language does not mean you get to attribute other words to me. I did not, as you say, “claim that a constituional right, or a check-and-balance, was violated”. This is what my orginal statement boils down to:
“Ashcroft’s not saying Hamdi’s not a citizen. He’s saying he can do what he wants because we’re at war.”
This is in line with powers of executive orders, is it not? Doesn’t mean I have to be happy about it, though, and I’m not.
Now, since you mention it, Hamdi’s rights are being violated. They just are not, in the eyes of the law, being unconstitutionally impinged. I’m sure you’ll agree many laws violate someone’s rights, but have a compelling state’s interest. This, however, is beside the point of my post.
I’ll comment on this one. It’s close, but I’d have to admit it may not be completly unconstitutional. US Constitution, Amendment 14, Section 1:
Hamdi was born in Louisiana, he’s a citizen.* Therefore, no one can enforce any law or practice any precedent that will infringe on his constitutional protections. (I know the ammendment says “states”, but I believe it is taken to apply to the feds as well)
This is the specific protection possibly being infringed upon: Amendment V
There has been no grand jury, there haven’t even been any charges filed.
Obviously the case arose in the armed forces and in “a time of danger”, but the question is: does that danger still apply? I don’t think it does, and Hamdi should be afforded his full fifth ammendment rights.
But I suppose I have to let the courts decide that as my robe is at the cleaners.
*If it comes out that Hamdi has renounced his citizenship, then this is still an improper action as he should be held at Quatonamo
Ace0Spades. I am very unhappy with the claim that the government may use law enforcement methods against a U.S. citizen on U.S. soil, and then claim exigencies of war defeat judicial review. I am a big believer in the “neutral, detahced magistrate” that is the hallmark of judicial review.
However, just as the judiciary provides the neutral, detached review, the executive should strive to accomplish the security of the country by any legal means at his disposal. The beauty of our government is precisely that tension in the system, where each branch exerts its powers in its area and strives to accomplish its mission.
So I don’t begrude Ashcroft’s requests to do these things. But I expect the judiciary to provide appropriate limitations, consistent with the law as crafted by the legislature.
peasea, I’m afraid I must disagree with your choice of terms. Under the definitions you seem to be advancing, confining a convicted burglar to jail is a violation of his rights, acceptable because there is a compelling governmental interest. I don’t see it that way at all. Once the burglar is convicted, he no longer has a right to liberty during the pendency of his sentence. It is even so in this case. Your definition would have me agreeing that Hamdi’s rights are being violated, but not unconstitutionally so. I say that (from a legal perspective) the only meaningful rights he has are those ennumerated by law.
If your post was merely a recapitulation of the government’s position, and a comment that you disagree with it, and are unhappy with it, then I suppose that’s irrefutable. But as you readily concede, your language was inflammatory. That lead to an inference, at least on my part, that you took the position that the government conduct violated the separation of powers. (“Their main point seems to be that they simply can do whatever they want in this time of War, and the judicial branch can kiss their collective asses.”)
In fact, while they are suggesting they are not subject to meaningful judicial review in this case, they are submitting to judicial review of that very claim. And thus far, the government view has been summarily rejected by the district court and ordered fully argued by the appellate court.
In short: if your point is merely that you, personally, disagree with the government, I can hardly dispute that, and don’t.
Appointments to the federal bench have become almost entirely political decisions. Since I’m not an ultra-right radical seeking to increase Bush’s power to the detriment of the Bill of Rights, it’s unlikely that I would ever be appointed by the current administration or any one like it. Also, where I went to law school is none of your business, but I assure you it is considered one of the best. We’re in the Pit, so I guess you can make this personal if you want to, but it strikes me a ridiculous to attack the credentials of someone you know absolutely nothing about.
Your apparent belief about the infallibility of federal judges is strange. Of course they make mistakes and even base their decisions on factors other than their honest evaluation of existing law. Judges from different courts disagree, and Supreme Court justices rarely agree with each other. Just because a particular case was decided a certain way doesn’t mean that it’s the correct interpretation of the Constitution. Anyway, what’s the point in having this discussion if we’re just going to accept the court’s interpretation as the correct one?
I admit that I haven’t read this case and none of the cases cited in the decision ring a bell. I’m not interested in getting into a long argument about Constitutional law. But what stands out to me is the fact that three of the cases they’re relying on are from the 19th century and one is from the same Supreme Court that OK’d internment camps. Of course they’re valid precedent until overruled, but it seems likely that these are cases that are badly in need of overruling.
I would like to reiterate the fact the Hamdi is a citizen unless the government can show a voluntary action he committed with the intention of renouncing his citizenship. Maybe the are grounds for him to lose his citizenship; maybe there are grounds for me to lose my citizenship, but the government hasn’t provided one single reason why that is the case. If we (“we” meaning everyone, via the public record) don’t have any real evidence whether he gave up is citizenship, then he is, by law, a citizen. Period.
Congress authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks or harbored such organizations or persons.” See Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
The Constitution does not forbid either lawful or unlawful combatants, regardless of citizenship, being subject to capture and detention as prisoners of war by U.S. military forces, without judicial review. See Duncan v. Kahanamoku, 327 U.S. 304, 313-14 (1946); *In re Territo, 156 F.2d 142, 145 (9th Cir. 1946); and of course Ex parte Quirin, 317 U.S. 1, 25 (1942).
In short, previous Supreme Court decisions seem to stand for the principle that the Fifth Amendment does not protect persons captured during war from being held without a grand jury indictment.
For this reason, the government claims no constitutional rights are violated.
chula:
My point was not to question your educational credentials, but your employment ones - that is, unless you’re a federal appellate judge, you can only suggest what the Constiution SHOULD say, not rule on what is DOES say.
It’s how we frame the discussion that’s of importance. There is a large conceptual gulf between, “The Constitution SHOULD protect…” and “The Constitution DOES protect…” To resolve the latter, the circuit court’s interpretation is the correct one, binding precedent in its circuit, unless and until overruled by the Supremes.
Here, I think you hit the nail on the head. Perhaps these cases are badly in need of overruling, and we can certainly discuss the wisdom of those prospective changes. But to vilify the administration for relying on still-valid precedent seems unfair in the extreme.
That is what I meant, though my original point, i.e., why I posted my two sentences in the first place, was that the AG is not arguing whether Hamdi is a U.S. citizen. This being the Pit, I don’t believe flaming Ashcroft in the process is out of line.
As for the side point:
I said many, not all, laws infringe someone’s rights. I was referring more to the “yelling fire in a crowded theater” idea, or holding religious beliefs that compel you to have sex with a pig on a school playground. In these cases, your freedom of speech/religion is being impinged, but not unconstitutionally, as there is a compelling state interest against them.
Hope that clarifies my position, brief as it was originally intended to be.
Bricker, I agree with your goal about the beauty of the tension in the system.
But when ‘war’ becomes an endless state with no achievable goals, and when the ‘neutral detatched magistrate(s)’ are corrupted by political pressures and are neither neutral, detatched or even magisterial, one must recognize that faith in the outcome of the system is unwarranted.
No, you definitely did challenge where I received my legal education.
You’re getting caught up in semantics, which detracts from any real argument here. If you want to be exact, we’re not arguing about what the Constitution does say or should say - anyone who can read English can tell you that - but how it should be applied. Not how it is applied. I don’t see why you have a problem with that.
From my understanding of WW2 weren’t people first rounded up and then placed in camps. I thought the systematic murder of those in the camps came later.
Right now we’re just at the ‘round them all up in camps and deny them rights we afford our citizens’.
How can we be proud out of rule of law and our constitution if we have an appointed official who decides when and where people are allowed legal rights?
Yes some of the people there are not citizens, but at least one’s citizenship is in question.
Our government won’t say they are POWs and accord them the rights as agreed under in International Law, and we aren’t giving them the rights of prisoners (even prisoners who are foreign nationals and commit crimes in the US get more rights).
I’m all infavor of casting Ashecroft as a Fascist or a Nazi. Our President and execuative branch are excersizing powers in a way that is very very dangerous. Public opinion on those who take up arms and support terrorist activities is allowing this to take place.
We’re making the terrorists point by denying those people the very rights we claim make our country so great.
“With freedom and justice for all… unless we don’t like your political beliefs.”
No trial, no lawyers, no witnesses, no rule of law. Just prison time.
I’m rambling, but what I’m getting at. The United States of America should not be represented by internment camps.
We try to stand for human rights, and when we elected officials who can get away with denying human rights to a segment of people, with the populations support, then yes it does smack of the tactics used by the nazis.
Further to the point about relying on ye olde precedents, I think it also has to be said, - and although it my civil libertarian heart - that it must be enormously difficult to mount a legal defence in a democracy - against an asymmetric enemy - using powers both designed and intended (presumably) to address a conventional (nation state) enemy – what we are now witnessing might be seen as hammering asymmetric pegs into round, 18th-19th century, holes (don’t try that at home, folks).
Extending the role of Devils Advocate further, one might argue that it’s Ashcroft’s duty to use all powers at his disposal. This is why the DoJ defence of ‘Separation on Powers’ – of which I admittedly have few details, I have asked it be explained further if anyone is conversant with it - troubles me the most: If the Court is not the final arbiter, the powers at the AG’s disposal appear unfettered and unlimited (for as long as the president, unilaterally, determines a ‘state of war’ exists). But the second point is just idle speculation as I’m not aware of the details of that the defence.
You’re right. To the extent I question your educational credentials, I apologize for having done so. That has no place in this discussion, and I shouldn’t have written it as I did. In mitigation, I can tell you what I was THINKING: that it flowed into the “are you a federal judge” question, and was intended to point out the futility of deciding for yourself what the Constitutional rule is, against existing precedent. But that’s not the way it came out, and I apologize for any negative inference.
But we’re not arguing about how it should be applied, even though we should be. The OP claims Ashcorft is in error for his position – that is, that his position attacks existing constitutional guarantees. There is no mention made of the fact that his position seems to comport with established precedent.
On the other hand, if you turned the terrorists over to civilian court, what exactly do you think the chances of a fair trail will be? A jury of their peers? Or a jury of people who can not let the terrorist attacks cloud their judgement…
Casting Ashcroft as a fascist is an entirely reasonable argument. I don’t believe it is accurate, but certainly reasonable people may disagree on this point.
Calling Ashcroft a Nazi is not a reasonable argument, because the Nazi regime was characterized by unspeakable evil. If you use the term for Ashcroft, you demonize him to an unfair extent and, much worse, trivialize the evils perpetuated by the real Nazis.
Ah, John, sorry buddy. Moving to secure, undisclosed location
I think some of you have hit upon the real crux of it. Ash - see, I can be respectful - croft is doing his job based on lousy, but still valid, precedent. If the internment cases are what we have to go on, he is well within his rights to cite them as binding precedent. Then, as has been stated, we all expect (pray) that those cases get overruled.
London_Calling also makes a good point. It is difficult to get at terrorism with legal distinctions which do not take terrorism into account. Terrorism can be defined as waging war through unconventional means against civilian targets in such a way as to avoid the consequences of war. Terrorism is, in a sense, in the gray area between war and crime. The WTC attacks, for example, produced comparable damage to a bombing raid. Yet, the attacks were carried out more like a crime.
Bricker: What I’m trying to get at is that we have a large segment of the population who see no problem with suspending the rule of law in the case of the detainees. To people like me and some of the posters here, what Ashecroft is doing is in direct violations of the ideals and intentions of those who founded our country. It smacks of the internment of those of Japanese extraction in WW2, which itself was little better than what the Nazi’s did to their own citizens.
Calling Ashecroft a Nazi is intended to SHOCK. To draw a parellel (arrg I CAN"T SPELL!) with what happened in post WWI Germany.
How far does the denial of rights have to go before the people of a nation stand up and say, “ENOUGH”.
In the case of the Nazis we saw what happens if nobody says enough.
In calling him a Nazi, or characterizing him as one, personally I’m trying to draw attention to what he’s doing in a vivid way to make people question, “Is this something I want my country to do? Is this something I want to be a part of?”
The problem with your intended parallel, CRorex, is the wide gulf between the two.
As we’ve hashed out already, the “denial of rights” appears thus far to be legal. The “rights” you’re referring to are ones you WISH the accused to have, not ones recognized by the law.
However, removing the “denial of rights” phrase, from the equation, I understand and agree with the value in asking the question, “Is this something I want my country to do?”
And while I agree that the Nazi analogy is shocking, I don’t agree it’s fair. As a rhetorical device, it suffers from the flaws I’ve already mentioned: Ashcroft’s actions are too mild to warrant the comparison, and the actual, real Nazis too evil to deserve the favorable effect of the comparison. Embodied in the “we must never forget” mantra of the evil that was 1940s Nazism is the simple principle that drawing parallels between lesser actions and the unspeakable horror lessens the impact of the horror.
I’m sorry, but the very fact that the argument has veered into this discussion should be good evidence that your rhetorical approach is less than effective: instead of wide-spread agreement on the lack of wisdom of the country pursuing the direction Ashcroft wishes to take us, we are arguing over the use of the Nazi label. Had you stuck with ‘fascist’, we’d not be stuck here.
I admit my reaction is a strong one. But I stand by it. Casual use of the appellation only weakens it, and diminishes the impact of the deaths of millions. In an era when there are truly groups that contend that Hitler wasn’t a bad guy at all, that Jews deserve murder, and that “white power” will rise up and control the land, I say we should save the Nazi label for the real Nazis.
Beagle, terrorism is a crime. Simple as that. Maybe it is new in the US but many countries have terrorists and deal with them with the courts of justice. The Oklahoma City bombing was a crime and tried that way. A crime is a crime and war is a totally different thing. War is not a crime but crimes may be committed in times of war. I just do not see the problem. You can only pnish someone who has committed a crime, that is it. Terrorists have committed crimes and should be tried and punished for it.