Does the US military have the authority to go into a foreign country and kill someone? (I can’t see how the answer could be no; they do it all the time).
Does the US military have the authority to use their established criteria for determining whether to do 1)?
If the answer is “yes” for both cases, then it seems to me that the military has the authority to go into Afghanistan, apprehend Osama bin Laden, and try him according their protocols.
MEBuckner
That’s bit of a Catch-22, because the trial depends on them being guilty of spying, but establishing that they are guilty requires a trial. Do you know how this is resolved?
Dave Stewart:
Why? This is a government “of the people, by the people, and for the people”. It is not a government “of the world, by the world, and for the world”.
By “constitutional rights”, do you mean the rights guaranteed by the US Constitution, or those by the other country’s? Birtain doesn’t have any constitution, so obviously foreigners aren’t given any constitutional rights in the latter meaning.
Can you name a single country that allows non-citizens to vote?
It is a widely recognized precept, and one that underlies the very concept of democracy, that governments exist to promote the interests of their people, not of the world.
The fact that the US sent japanese in camps during the WWII isn’t the most glorious event in their history, AFAIK.
Terrorism can be considered as an act of war. But I believe there’s another thread going on on this exact topic. What I meant is that the US aren’t in such a desperate situation that all constitutionnal rights should be threw out of the window for the country to survive. It could be different if the government was on the verge of collapse, the country invaded, or whatever. You’re a long way from that.
I’m french, but I don’t see in what way it’s relevant. And where exactly did I refer to “ignorant and belligerant americans”?
Yes, in theory. But I’m somewhat a pragmatic, and I can understand that under extreme circumstances (not merely in times of war), the rule of law can be…err…toned down…
I wrote YOUR constitutionnal rights since I assumed the person I was replying to was american. I used the term “constitutionnal rights” because it seems to me it’s the term commonly used in the US. Here, they wouldn’t be refered to as constitutionnal rights, either, despite the fact we have a constitution, but as human rights.
I specifically excluded rights which are directly tied to citizenship. Voting is one of them.
Anyway, that’s nitpicking. I guess it’s clear to everybody that we are refering here to the rights to a due process of law. If you can cite any democratic country where only citizens are allowed the assistance of a lawyer, have a right to appeal, etc…, please do.
There are rights which are tied to citizenship (as a foreigner, I can’t vote, nor I can choose to live in Utah) and others which are given an universal value (despite being a foreigner, I’ll be prosecuted by the same courts and I can’t be discrimated against on the basis of my race). Even if it isn’t explicitally written in the constitution, it will be interpretated this way by courts.
And usually, when a right apply only to citizens, it’s mentionned in the constitution/law,etc…For instance, it will say that “all Randomcountryan citizens are entitled to vote”. A right which isn’t explicitely restricted to citizens, or explicitely denied to aliens is considered to apply to everybody. At least it’s the case here, and I strongly suspect it’s the same in the US.
Would you argue that is you were, say, victim of a scam, the police officer/judge/attorney could say “well, you’re a foreigner, our laws only protect american citizens, and since I don’t feel courteous today, you won’t be allowed to prosecute an american company”? What could prevent that, if the opinion that rights were extended to foreigners only “out of courtesy” was true?
What you say could be true for governments, indeed. But we aren’t talking about governments, here, but about rights. Most constitutionnal (or whatever name you want to use)rights originate in the idea that there are universal and natural rights, inherent to human condition, and not related to contingencies like place of birth, etc…
And by the way, concerning your question, there are several countries where non-citizens are allowed to vote for local elections if they’re legal residents…(though this is quite anecdotal, and not related to the debate).
Clairbspur, if you had bothered to read my reply to Dave Steward you would have seen that I merely wanted to get a gage on how people of other nations felt about this issue as opposed to american citizens. I did not intend it a threat to start bashing other nations policies, I wouldn’t want to lower this discussion to that level frenchy.
Cervaise, sorry it took so long for me to get back with but I had to brush up on my history. NOT! I am quite aware that the good ole US of A has done some down right nasty things in the past and I sight the japanese interment as one of them and the capture and inprisionment of Noreaga as another. We can add the Sedition Act of 1918 to that list if you wish.
Its just that I don’t believe that we can add terror courts to that list yet. Now I do have some misgivings about the Bush administration not setting guidelines on how these would operate, they had better come up with at least an outline of the operating rules before they capture someone and decide to try them in this manner.
If they wait then it is going to appear that they are making up the rules to fit the case at hand.
However mangled jaybee’s posts are, there is a basic point in spirit that rings through. I will attempt to remind the people here of something that Collounsbury has repeated time and again at these boards. Any attempt to prosecute the acts of the terrorists as criminal conduct is a serious mistake.
What has been perpetrated upon the United States is nothing other than an act of war. To permit those involved the luxury of a civilian trial is to risk setting free those who would do us great and greivous harm. We are not talking about the risk of setting aside the potential conviction of a murderer. We are talking about the chance that those who would cheerfully kill thousands might escape due to an overly strict judicial code.
Acts of war involve far greater damage and often include sufficient destruction or obscuration of evidence whereby it is nearly impossible to establish anything more than a preponderance of evidence and not proof beyond a shadow of a doubt. The nature of war-like acts and the involvement of those who actively premeditate extensive destruction and loss of life (be it civilian or military personnel) require that judgement be passed by those who are obliged to combat it.
Judges are those who evaluate civil tort and liability. Judges do not plan, execute or analyse martial strategy. Military officers are the ones who prosecute wars and are far better suited to establish when acts of war have occured. It is for this reason that a unanimous verdict is not required in a military court. When there is a preponderance of evidence indicating complicity or direct participation in an act of war that must needs be sufficient for conviction by that same legal body.
Along with many people in this same thread I too have grave concerns about the motivations and intentions of the current administration. There is a pattern of wholesale curtailment of civilian rights, those of foreign nationals aside for the nonce. It is this larger scope that gives me pause when potentially advocating the implementation of military tribunals in the prosecution of those who would commit terrorist acts against the United States. Loss of liberty is writ large in the “Homeland Security” measures being bandied about by the current administration. If there was only the issue of military trial for terrorists I might wholeheartedly support this issue. Because of the wholesale trampling of civil rights intrinsic in this adminstration’s attempts to combat the breaches in our nation’s current security, I am much more hesitant than I might be.
I think there has been way too much confusion as to foreign nationals on our soil who are accused of civil wrongdoing and foreign agents who are found to be actively engaged in acts of terror. The selective application of our constitution to these two categories of aliens does not represent any sort of contradiction to me. The intentional restriction of liberties and constitutional rights to our own citizenry does represent a significant issue and is one worthy of careful scrutiny by every American as this administration continues to advocate such.
So no country gives some rights to citizens, but not to non-citizens- except for the rights based on citizenship. True, yes. But rather tautological, no?
Are we? I got the impression from Monty’s posts that military justice includes due process.
Well, individual citizens can’t prosecute. Only prosecutors can do that. And prosecutors can refuse to prosecute any crime, regardless of citizenship, AFAIK.
That’s no the basis you were arguing before. Before you were saying that we afford our own citizens these protections, so it unfair to deny them to noncitizens. But now you’re saying that they are basic human rights. If that’s your argument, then it is irrelevant whather they are given to Americans.
Now, it is generally agreed that we are justified in bombing Afghanistan, even though it is resulting in innocent people dying. I doubt that we would be as quick to accept a bombing campaign that caused as many American casualties. So it seems to me that we accept that we need not accord nonAmericans as much concern as Americans. So I don’t think that is it feasible to debate whether we are justified in general in denying nonAmerican protections we accord Americans. The only question is whether in this particular case it is justified.
Huh? It’s resolved the same as any other criminal offense. A person is accused (during time of war) of “lurking as a spy or acting as a spy, etc.” Under that law, jurisdiction over the offense of which that person is accused is held not by the ordinary civil courts (state or federal) but by specially constituted military tribunals. The person accused of violating the statute is tried before a court-martial or a military commission. If the court-martial or military commission concludes that the aforesaid person was in fact lurking about in a spying sort of way, then the aforesaid person is taken out and shot (or hanged or lethally injected or whatever). In the unlikely event that a military commission operating under stripped-down rules of due process concludes that the aforesaid person was not in fact a spy, then the defendant is released from custody.
The statute on its face is certainly rather draconian, in that it’s the only statute I am aware of under U.S. law which provides for a mandatory death penalty (and not “death or such other punishment as a court-martial may direct” or “death or imprisonment for life”), and the rules and procedure which may be set for “military commissions” may make the statute even more draconian, and maybe even unjust. But it’s no more a “Catch-22” than any other criminal offense. All criminal statutes tend to use language like “A person who does X is guilty of the crime Y”; trials (whether before civilian courts, courts-martial, or military commissions) are for the purpose of determining if the defendant in fact did action X.
MEBuckner, the point is that if it is good enough for non-nationals why is it not good enough for US citizens? And viceversa, if it is not good enough for US citizens, then why should it be good enough for non-citizens? It is the discrimination which I object to.
There are residents who have been in the US for decades and are totally integrated. Why should they not have the right to the same process?
If other contries discriminated against US citizens in the same manner, would the US think it is OK?
I’m not a lawyer nor a native speaker, obviously. So, I can express myself poorly. If I say that there are two categories of rights, rights tied to citizenships and rights which are given an universal value, and that the rights we are refering to in this thread fall in the second category, is it clearer?
But I’m convinced you perfectly understood what I meant and that you’re just nitpicking for the sake of it.
Since it seems you’re lost, here’s a c/p of the content of the post I was responding to :
“I beleive that the constitution only applies to citizens of the United States and that under normal circumstances we allow it to be extended to people of other nations on our soil as a courtescy. Sort of you respect our citizens while they are in your country and we will respect yours kinda thing.”
It has nothing to do with the fact that military justice includes or not due process nor with the debate about the the terrorists being handled to military courts or not. It’s another debate on which I also gave my opinion later in the thread. But please, don’t mix up the two issues. Since you’re responding to my arguments about “constitutionnal rights being extended to aliens out of courtesy”, please stick to this topic.
And if on the other hand you want to engage me on my statement that military courts shouldn’t handle these terrorism cases, please respond to the arguments I made on that topic.
Ok. Once again, I’m not a native speaker. I meant “sue”, not “prosecute”. Anyway it was only an example. I guess you understood my point.
I certainly never argued that it was “unfair”. I didn’t place myself on the “fair/unfair” ground. I stated that in democracies, included the US, basic rights aren’t reserved to the citizens and “extended out of courtesy” to aliens. Statement which is perfectly consistent, and actually the consequence, of the assumed existence of natural rights.
And yes, it’s in some way irrelevant if they’re given to americans. That’s why a democratic country will protest if one of his citizens (or even a local) can’t benefit from these rights when prosecuted in another country, even when this other country don’t grant them to its own citizens.
But my point was not merely that France should legitimately protest if one of his citizens was denied his rights to a due process of law in the US on the basis of his nationality. It was that nor in the US, nor in another democratic country it could be done (in theory) because it runs against the principles on which our democracies are based.
There can be differences on particular points (for instance the death penalty or the condemnations “in abstentia”, or even the right of appeal), but the general principles are the same. And the poster I was responding to was refering to a general principle (constitutionnal rights reserved to americans) which doesn’t exist.
What people accept or not has nothing to do (or not much to do) with legal/ constitutionnal issues.
Also, there’s obviously a very interesting point here : you can kill anyone at will by dropping a bomb on him, but if you happen to catch him alive, he’s suddenly granted plenty of rights. But it’s obviously another debate.
And it can be feasible to debate whether the US are justified in, etc… It depends on what side of the issue you’re considering. Since I was speaking from a legal/ constitutionnal point of view and in a general way, it’s perfectly feasible. From this point of view, you’re not justified since nor your laws, nor your constitution, nor the international law allow the US to deny rights to aliens in the way the poster I cited was envisioning (they’re granted out of courtesy, so we can cancel them at will).
If we’re are debating about questions like :
-Can the US deny these rights, from a moral point of view?
-Is it possible, practically speaking?
-Is it fair?
-Will it be accepted by the US population?
-Is it constitutionnally possible in this particular case?
-Is it a good idea?
Then, these are different issues. But I wasn’t arguing about them.
An excellent point. As everyone in the media has been saying, the US should learn “techniques” for dealing with terrorism for Israel. If we use these techniques, the answer to your question is that they’ll be shot by military snipers and/or their families held hostage or killed. When fighting crime, especially terrorism, people like to forget that we aren’t always right in fingering “the bad guys.”
Should the American airlines implement security measures similar to El-Al? Only if we think that racial profiling is acceptable (which I, as a fairly dark-skinned person, do not).
War is a status between nations, not between a nation and any given person or list of persons. OBL is a criminal, he is not in any country’s uniform, in fact, I believe that he is a stateless person, the Saudi’s have made a great public display of washing thier hands of him.
We have a war crimes tribunal in the Hague, even as we speak. How difficult would it be to bring this matter before them? Why hasn’t it been mentioned, even in passing.
Because they wont kill him, is my best guess. And we want blood.
How will the rest of the world see this? A very great number will see it as further evidence of American arrogance, we place no law higher than our own, if the UN is useful, we use them, if they hinder us, we will ignore them. Not good.
How do you know that it hasn’t been mentioned? Have you been in on every discussion that goes on in the White House? Do you know what options they discussed? No? I thought not.
Here’s why it wouldn’t be placed in War Crimes tribunal. Because, as you said before, it isn’t a war crime. So first you go out of your way to show why OBL isn’t involved in a war, and then criticize people for not putting him on trial in a WAR CRIMES tribunal. Good logic.
And from this broken logic you go on to assign the worst possible motives to people. Excellent strawman.
Goodness me, neurotik, I had no intention of tying such a knot in your shorts. Take it easy. You’ll live longer. Have nice cup chamomile tea, put your feet up.
OK, then not the War Crimes tribunal. Feel better now? Establishing some sort of international jurisdiction very much like the Hague seems a perfectly sensible alternative, since we have good reason to believe this sort of thing will happen again.
Our leaders appear to have locked themselves into a “my way or no way” stance, at least insofar as they communicate to us. They seem to have but little regard for how the rest of the world sees this, and that, I worry, could be a grave error. Especially if we conduct a closed trial.
IF OBL is guilty, and I am convinced that he is, what do we risk conducting an open, civilian type trial? Only if we do not, in fact, have the required evidence to convict him. And if we don’t, we shouldn’t be doing what we’re doing in the first place. (I’m assuming we do, of course, as has been cordially pointed out, I have no access to the corridors of power).
But very few laws have, as a consequence of the crime, that the jurisdiction changes. Perhaps “Catch-22” does not properly convey what I was trying to say, but the statute defintely is poorly worded. If what they mean is “accusation of espionage are under the jurisdiction of the military”, then that’s what they should have said.
sailor:
As arbitrary as nationalism may seem, it is necessary for the world as we know it.
Perhaps the US would not be happy about it, but I think that the US would understand, unless it was a particularly egregious violation of rigths, in which case the US would have the right to delcare war. If Afghanistan thinks that we are being unfair to their citizens, they have the right to declare war on us as well. Oh wait, that’s right. We’re already at war with them.
clairobscur
Well, no. I thought that the issue was that they are tied to citizenship. IOW, they are in the first category.
I think that if you’re going to switch topics, you should make it more clear.
But you seem to be basing your argument of commonly accepted principles. If what people accept is irrelevant, then why do you keep on bringing up that “democracies don’t do this”?
>> As arbitrary as nationalism may seem, it is necessary for the world as we know it
Nope, I do not think other civilized nations have criminal laws which discriminate against foreigners. Or perhaps you can give me an example? Any civilized nation which in a criminal trial does not afford non-citizens the same protections it affords its own citizens? Any nation whether civilized or not?
The USA has long protested against military tribunals and secret trials for US citizens in other countries even though they were afforded the same process as nationals were. (Who was that American woman tried for terrorism in some south American contry?)
The USA loudly protests secret trials of Americans in China even though those trials are ay more lenient than for Chinese nationals. Can you just imagine if China allowed their people certain guarantees and denied them to Americans?
I do not have a problem with military tribunals for the military and acts subject to miltary jurisdiction, like acts of war. I have a problem with the discrimination on the basis of citizenship. This discrimination is unprecedented and indefensible as a step in a very wrong direction. If military trials are required for a certain type of crime, they should be for everyone, regarless of nationality. I cannot see why Americans should be allowed to be terrorists any more than anyone else.
sailor: Just to keep this straight, in time of war 10 U.S.C. 906 (Article 106 of the Uniform Code of Military Justice), as far as I can tell, applies to anyone, civilian or military, citizen or non-citizen. This is a separate matter from Bush’s recent executive order.
The Ryan: Yes, I think all they are saying is that, in time of war, accusations of the crime of “spying” are under the jurisdiction of the military. It seems clear enough to me.