IANAL but I don’t think the Constitution applies to non-citizens who are not US residents. Non-citizen US residents do have some Constitutional protections, but less than citizens.
Doesn’t matter, the president just can’t order someone shot. In fact the military isn’t really suppose to kill anyone unless they are posing a danger to them (at least infantry) hell they aren’t even suppose to shoot at parachuting troops (they do dodge this by saying you can shoot at gear)
>> I don’t think the Constitution applies to non-citizens who are not US residents. Non-citizen US residents do have some Constitutional protections, but less than citizens
This has been discussed many times over. So you are telling me the INS can go into the kitchen of a restaurant and shoot on sight all the illegal immigrants working there? Get real. Even people who are in the US illegally have constitutional protection and you should know that if you read the news. There are hundreds of thousands of people who are in the US illegally and they are protected by the constitution. Or do you think if Pat Buchanan became president he could order them all shot on sight? Gimme a break will ya?
Paratroops may certainly be shot at while they are still in the air. Conversely, to shoot at the parachute of a pilot who has been shot down is clearly a violation of the protocol (which isn’t to say it’s never happened.)
And I don’t think there’s any basis to your statement that infantry forces aren’t supposed to kill enemy soldiers unless those soldiers are “posing a danger to them”. It is not a violation of the laws of war to shoot enemy soldiers in the back while they are retreating, or fleeing for their lives in panic. (It is a violation of the laws of war to shoot enemy soldiers if they are attempting to surrender, which is not the same thing as retreating.) The military is not the police, and domestic rules about the use of deadly force by the police don’t apply.
sailor, you missed a coule of points:
- Illegal immigrants are residents.
- Just because someting is constitutional doesn’t mean it’s legal.
Until a few years ago American agents could legally assassinate certain non-American “bad guys”, and they did so. I never heard anyone say that practice was unconstitutional. However, it is illegal now.
BTW I don’t like Pat Buchanan. I disagree with him on most issues. Still, I’m offended by your casual, unsupported insult of him.
Bill Clinton ordered an attack on what turned out to be a Sudanese aspirin factory without any statutory justification. IIRC that attack killed a janitor. I think that was an inept execution of a dumb strategy, but I don’t think it was unconstitutional.
Huh? You obviously dont have a clue. Legal residents have a “green card”. You can claim illegal aliens residing in the US are residents by dictionary definitions but that is not what counts. To the INS “resident” means “green card”. At any rate, are you telling me that anyone who sets one foot on American soil immediately becomes a “resident”? Those Mexicans you see crossing the border and are immediately arrested are “residents”? Or can they be shot on sight? If not, why not? Why are they entitled to due process before being expelled? I do not think it is due to the graciousness of the INS.
Huh? (again) What does this have to do with anything? Are you trying to confuse me or are you confused yourself? I said the order may not be constitutional and now you say “Just because someting is constitutional doesn’t mean it’s legal”. So you are saying the executive order may not be against the constitution but may be against some other law? Are you trying to support my position or are you arguing against it? You seem to be arguing against yourself here.
Can you provide some examples of legal killings by the US government of anyone in the US who could be brought to trial? I mean not by police in self defense or anything like that, just someone, it does not matter who, bad guy, good guy, citizen or not, who the US government did not want to bother arresting and taking to trial and they just took the shortcut of assasinating him and the courts found that was legal. I’d like to see an example.
You seem to miss the difference between an act of war and having someone in custody and refusing that person due process. The difference is that this is an act of war in a place where the US has no jurisdiction so the only way to achieve what they want is by such an attack. An attack to destroy anything abroad is definitely constitutional. The US can definitely attack the places where BenLaden is and kill him. What they cannot do is catch him, bring him to the US and then kill him without due process. Having BinLaden in a US prison and saying “what the heck, we’re not going to bother with due process, let’s just shoot the guy” is definitely not constitutional. Now, a court martial or a mock court may be considered due process but I suspect the SCOTUS may have some problem with something being considered good enough due process for some and not for others.
No. A resident is someone who is legally here, as in a citizen or an alien who has been granted resident status (i.e., Resident Alien). Illegal immigrants are those who are legally resident elswhere (another country) but have either not bothered to get a visa, have overstayed the one they got, or just plain lied about the purpose of the one they did get.
Get back to us after you read the constitution. “Constitutional” means “legal” in this land.
That’s because there was a law passed or an executive order issued which made it illegal. But going around shooting people in the country just for the heck of it is what’s usually known as murder. Even the feds have laws against that already.
It was an example. He didn’t say that Buchanan would do it. He was making the point that your examples are folly.
Except for that whole defending the country thing the President, as Commander in Chief of the military, does.
Please tell me you’re not going to trot out the tired excuse that Clinton did that to divert attention.
Whether the Constitution does or does not apply to aliens on US soil has been discussed many times in other threads. You might want to look at them. I hate it when Americans have a feeling that being a US citizen somehow should let them get away with things other people should not be allowed. In my view, if anything, citizenship should not be a free pass to attacking your own people and the penalties should be harsher, rather than more lenient. Nations have always recognised this and, for example, only nationals could be tried for treason as it was recognised that foreigners did not owe allegiance to the country. And a non-citizen should be given the same due process as any citizen.
I do not know for certain if there are any US citizens fighting with the Taliban but I know there are some British citizens. Suppose there are some US citizens fighting with the Taliban. Obviously they can be killed without deu process. Even if they are not fighting and are innocent bystanders. If the bombings would have killed some US reporter or the aid workers kidnapped by the Taliban there is certainly nothing illegal about that. I am sure the British planes would not mind killing the British citizens who are fighting for the Taliban. The point is there is in war operations there are different rules.
Another point I would make is that I would love to see the European Union pass a law saying “since European nationals can be denied due process in the USA, we hereby remove any obligation to give US nationals due process in Europe and we will have a special “due process” for Americans which shall be called “trial by burger” and shall consist on the accused being forced to eat 35 Big Macs and if he survive he shall be declared innocent and be sent on his merry way”. Let’s se how nicely Americans would take it if they were denied the same process as nationals in other countries.
I remember some years ago, a similar case. Some foreign national had been sentenced to death but, during the process had been denied consular access contrary to law and treaties. The case went up to the SCOTUS and the guy was executed anyway and the politicians were acting tough and saying “screw them foreigners, if they don’t want the penalty they should not do the crime, etc”. It plays well with the home audience but Madeleine Albright showed her concern because she saw, very correctly that the effect was going to be to impede consular access for Americans arrested in other countries. They were making her job of helping Americans abroad a lot more difficult.
Is there possibly a worse idea for the United States government to come up with and the way they came up with it.
IIRC we conducted open war crime trials after WWII and the defendants were allowed to explain themselves, resulting not in anyone flocking to their cause, but rather by a universal condemnation of their actions and a more or less permanent mocking of their excuse “I was only following orders” as moral cowardice to not only their defense, but to their cause too.
While I will not shed any tears if OBL winds up dead, hearing him try to justify the murders of thousands of innocents as a result of the oppression of people he and his kind have always refused to fight for directly, and in fact have condemned us for fighting for directly will show that he is just a mentally disturbed loser wtih too much money and time on his hands.
[QUOTE]
*Originally posted by sailor *
sailor, you’ve descended into insults; you must be running out of arguments.
It’s my understanding that according to SCOTUS illegal aliens living in the US have some degree of Constitutional rights, which differ from aliens living abroad. I would invite some lawyer to clear this up.
No, only the ones who live here. E.g., tourists or visitors aren’t residents.
Good question. I suspect it’s partly due to INS incompetence (and perhaps corruption). Also, there were Presidents trying to win Hispanic votes who haven’t pushed this issue, such as Bill Clinton and George W. Bush
[quote]
Just because something is constitutional doesn’t mean it’s legal.
More insults; I must be winning.
Bingo!
sailor, e.g., you wrote
I was pointing out that something like this might be Constitutional but illegal. (but you really knew that.)
This is a hijack, since the terror court would involve a trial. However, it was legal to shoot other Americans during the Civil War. It may have been legal at some point in time to shoot deserters, but I couldn’t support this with a cite. As a practical matter, criminals like Jesse James were shot down in cold blood.
Of course, it would never happen this way, because if we had decided to kill him without a trial, there’d be no reason to bring him to the US. I agree that this would feel unconstitutional, but I’d appreciate being shown the basis for finding it so.
We shall see.
Monty, I responded to most of your points in my response to sailor.
You may have your implications backwards. If something is unconstitutional, then it’s prohibited. But, not vice versa. E.g., armed robbery isn’t unConstitutional
OK. I’m not going to trot out the tired excuse that Clinton did that to divert attention. My point was that he had the power to take retributive action without a trial and without a declaration of war or even a Congressional resolution.
Now Congress has voted to conduct a war on terrorism. IMHO this vote gives W broad powers, if he chooses to use them. To what degree he ought to use them is a different question. I have mixed feelings.
I would too because I am quite sure you are wrong. It is my understanding that every person under US jurisdiction is afforded constitutional protection. This has been discussed in other threads and I believe this was the conclusion reached. A tourist accused of a crime in the US has the right to due process like everyone else. An illegal immigrant accused of a crime has the right to due process like everyone else.
The INS takes illegal immigrants and other non-residents before a judge due to “incompetence and corruption”? What the heck are you talking about? What do they gain by this and why would a judge play along? Your explanation makes no sense. So the INS wants to deport someone but they are so incompetent they think they have to go to a judge? Or they are corrupted? By who? The whole thing makes no sense. Why wouldn’t they just throw the guy in jail with no process if he is not entitled to it?
>> This is a hijack
Well, it is your hijack because you brought up the point when you said
What I am asking you is to provide support for that assertion. Can you please do that? Can you please show they were authorized to kill “non-American bad guys” but not American bad guys under the same circumstances? Please?
The point I am trying to make is that if the constitution protects a US citizen in a acertain aspect, (except for the right to reside and work in the US), it also protects any other person under US jurisdiction in the same aspect. I believe this is what you are denying. Can you please provide specific examples supporting what you say?
If binladen surrenders and is killed in cold blood when he is no threat, that is clearly a crime of war and is prosecutable. It is also immoral and it would be a shame on any civilized nation to conduct wars like that. People are being judged for war crimes in Bosnia and Kosovo. Would you like to see Americans indicted for war crimes? And if BinLaden is taken prisoner and brought to the US, I can guarantee you he enjoys certain constitutional protection and cannot just be executed without trial. What the US has been doing is hand people to other countries for interrogation and/or trial since those countries, like Egypt for instance, do not have to be bothered with such niceties. The problem is that it sometimes backfires and the country you thought would be harsher turns out to be more lenient so giving Ben Laden to the Saudis would not be an option. And many of us question the morality of this. handing a person to a country who you know will torture him is pretty much the same as torturing him yourself. I have a problem with this.
Again, my objection is the double standard. The executive order allows a serious curtailment of due process for non-citizens, resident or not. There are thousands of non-citizens who have lived in the US for years and who deserve as much due process as the next guy. and, if the situation is so bad that military tribunals are required, then they must be required for everybody, citizens and non-citizens.
And, if the SCOTUS rules that indeed due process means different things for citizens and non citizens, then I hope the rest of the world reciprocates in kind and denies US citizens the protections afforded to their own citizens.
By the way, I know it is the SCOTUS who interprets the Constitution and the actual words mean whatever they want them to mean but in reading the Bill of Rights I see it talks of the rights or “persons” and “people”, not “citizen’s of the US”. Those are the actual words. Of course, the SCOTUS could say the meaning of those words are restricted to cover the citizens only but I believe they have affirmed quite the contrary.
Again, this topic has been discussed before and I believe I am right. I think it was Sua Sponte who issued that opinion of his own initiative.
Why should they? Maybe they don’t care. New York City has a law prohibing city workers from telling the INS about an illegal immigrant. Why should a NY policeman be prohibited from turning in a criminal?
I found a cite, which doesn’t answer all your questions, but it’s relevant. Note that it discusses assassination in terms of international law, the UN charter and Army regulations, but doesn’t mention the US Constitution. (BTW note that it also says that the US $25 million reward for OBL is a war crime!)
http://www.uh.edu/admin/media/nr/92001/paust-law.htm
Not being a lawyer, I find myself unable to do this. Can you demonstrate the reverse?
In principle I agree with you. However, I cannot imagine who would actually prosecute W if this occurred.
Do Americans currently get the same protections as native citizens, when we’re abroad? I don’t know. We sure don’t in Taleban-controlled Afghanistan!
>> Why wouldn’t they [the INS] just throw the guy [illegal
>> immigrant] in jail with no process if he is not entitled to it?
>> Why should they? Maybe they don’t care
So, to you it makes sense that when the INS is trying to deport someone from the country, instead of just deporting them, just for the heck of it, they throw hurdles in their own way because they have nothing else better to do. And the judges and the rest of the system go along and pretend the alien has those rights. Sorry but it makes no sense to me.
>> New York City has a law prohibing city workers from telling
>> the INS about an illegal immigrant. Why should a NY policeman
>> be prohibited from turning in a criminal?
Because they have determined that turning illegals in to the INS means those illegals do not voluntarily participate in programs aimed at helping them and this is a bad thing for NYC at large. I can’t see how this is relevant but it just reminded me of something: I am vague about the details but I believe California and some other states tried to refuse some social services to illegal aliens and they were told they couldn’t do that so they were trying to recover the costs of prividing those services from the Federal Government. On what grounds was California forbidden from providing those services to illegal aliens (schooling for the children etc)? I believe it was constitutional grounds.
Next point. I asked you to provide proof that “Until a few years ago American agents could legally assassinate certain non-American “bad guys”, and they did so. I never heard anyone say that practice was unconstitutional. However, it is illegal now.” The cites you have provided have absolutely nothing to do with this and do not support your initial assertion in any way. Nowhere do they say US nationals and non-nationals should be treated differently which is the point we are discussing. At least I can’t find it. Can you?
>> Not being a lawyer, I find myself unable to do this. Can you demonstrate the reverse?
Will the Bill Of Rights do?
Nowhere does it say these rights are afforded only to US citizens. Now it is up to you to prove the SCOTUS has interpreted those words to mean only US citizens.
>> Do Americans currently get the same protections as native citizens, when we’re abroad? I don’t know. We sure don’t in Taleban-controlled Afghanistan!
AFAIK, yes they do. I do not know any country that curtails the processal rights of non-citizens when compared to citizens. In fact, American citizens are often treated better, not worse than their own nationals. Passing laws discriminating against foreigners in the US is asking for trouble abroad.
In summary, this executive order is a bad idea, no matter from where you look at it.
oh, and to answer who would prosecute war crimes committed by the USA, I will tell you there are plenty of people and governments who are more than eager to do this. Your own cite says: "Assassination during an armed conflict is a war crime, subject to universal jurisdiction and nonimmunity from criminal or civil sanctions. " Milosevich has been judged for war crimes. Would you really like to see the USA in the same position? Your position sounds like “yeah, let them try”. Are you defending the commission of war crimes by the US just because other nations could not effectively prosecute and try those responsible?
Do you remember the Austrian president who was pretty much locked up in his own country because he had been accused of war crimes? Would you like to see the USA in the same position where the president cannot leave the country?
If the USA has certain moral authority among nations it is because it keeps certain moral and ethical standards. If the USA decided to ignore these standards it would be a disaster for everybody but mostly for the USA. The most successful part of this war is having turned the entire world to their side and against the Taliban. If the US would not follow such high ethical standards, the entire world would turn against it in a minute, and rightly so. Do you really think Europe, Blair, would support a USA which was committing war crimes?
sailor, I agree that the key is the SCOTUS interpretation. However, since we’re doing our own legal analysis of the Constitution, try the Preamble:
In some ways I don’t like the EO. It could conceivably be abused by the Bushies. Also, it’s a terrible precedent.
OTOH imagine an OBL trial that repeated the OJ trial hullabaloo, and which resulted in acquittal! (Rich people tend to do well in criminal trials before American juries.) OBL would be even more the hero of the radical Islam world and he’d be back in business, killing Americans. This is too horrible to contemplate.
december, the problem is that, just as in the OJ case, maintaining a certain standard is more important than the individual case. With OJ we cannot just say “To heck with due process; we know he did it, let’s hang him!” because we recognise that preserving the system is more important than the outcome of the individual case. For the same reason, if the US, for expediency in an individual case, were to ignore all standards of ethics and international and domestic law, it may resolve that case but the damage done to the US credibility would be far greater than anything gained. It would be a step back.
In a realistic sense it willprobably never come to happen that Usama BL is sitting in a US courtroom. The US is letting the northern alliance do the dirty work and they would probably take good care of him.
Regarding my assertion that the constitution protects everybody under US jurisdiction, I base it among many other things, on a past thread where this was discussed and some lawyer, I believe it was SuaSponte, explained it like that. I really wish the search function worked better (or maybe I do not know how to use it well) because I never seem to be able to find anything. Maybe you can find that thread.
sigh… i mention again. he won’t be trialed in the u.s.
btw… do you really think obl could sway an american jury???
I think gex^2 is probably right. I certainly OBL is killed in the fighting. Still, one never knows…
What kind of American jury would there be? Any American with a prejudice against OBL would be excluded. Who’s left? Just the turnips.
I don’t trust vegetable life forms to make sound decisions.