# Senate Pubs block bill to restore habeas corpus rights to "terrorist" detainees **URL:** \ **Category:** The BBQ Pit\ **Created:** [September 20, 2007, 1:32am UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823 "2007-09-20T01:32:32Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [September 21, 2007, 8:29pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/101 "2007-09-21T20:29:51Z")
“Process” them? Are you implying some standards of evidence be applied? Some means of assuring ourselves we don’t “process” (oh, lovely euphemism, that can obscure so much!) the innocent? Just give me your best guess, **Bricker and John**. How many current detainees aren’t guilty of much of anything? Do we brush them aside for expedience sake? Absent the sort of protections we offer the lowest criminal…confronting your accusers, meaningful counsel, that sort of thing…what chance does an innocent man have? Are we to be ashamed, or merely uncomfortable with our own principles? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 21, 2007, 8:32pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/102 "2007-09-21T20:32:21Z")
[QUOTE=JKellyMap] Exactly! You would think that Bricker would know that it should be about due process – finding out facts in a timely fashion and acting accordingly. I still don’t understand who wins when it’s done otherwise. [/quote] Is “due process” EXACTLY EQUAL to “habeas corpus”? That is, we cannot possibly have due process here unless and until the right of habeas is granted? And we need do nothing more to ensure due process than to grant the right of habeas? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [September 21, 2007, 8:35pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/103 "2007-09-21T20:35:22Z")
> [@elucidator](#): > > I am well aware, thank you, of the use of the term, and the context. But if you are not contemplating actions outside of a moral framework, what is to be gained? Is it an entirely empty intellectual excercise? Well, then, no real problem. I suppose, we might as well contemptlate the advantages of a time machine to go back and kill Osama’s great-grandfather. If such is to your taste. I think **John Mace** explained what is to be gained by discussing the issue outside of a moral context. We can come to an agreement about how to proceed with people who might not share our moral values. If, for example, everyone agrees that Guantanamo should be closed for policy reasons, there’s no need to resolve the moral questions. There is, no doubt, some value in asserting the moral reasons. But there is greater value in actually accomplishing the moral goals. I agree with the rest of your post, as I am firmly on your side on the issue. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 21, 2007, 8:35pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/104 "2007-09-21T20:35:35Z")
[QUOTE=elucidator] “Process” them? Are you implying some standards of evidence be applied? Some means of assuring ourselves we don’t “process” (oh, lovely euphemism, that can obscure so much!) the innocent? Just give me your best guess, **Bricker and John**. How many current detainees aren’t guilty of much of anything? Do we brush them aside for expedience sake? Absent the sort of protections we offer the lowest criminal…confronting your accusers, meaningful counsel, that sort of thing…what chance does an innocent man have? Are we to be ashamed, or merely uncomfortable with our own principles? [/QUOTE] We offer a great many protections to “the lowest criminal” that we should not offer these detainees. We don’t search the lowest criminal’s home or person without a warrant, issued upon probable cause, describing with particularity the things to be seized. Yet on a battlefield in a foreign land, we don’t mind searching the possessions and person of those captured. Do you see the difference? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 21, 2007, 8:38pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/105 "2007-09-21T20:38:30Z")
Just let someone opposed to same sex marriage, or adultery, or prostitution, or pornography, or gambling suggest that we should resolve the issue on moral grounds, in a moral context, and the fur will fly. We’ll hear how he is seeking to impose his morality on the country, and legislating morality is wrong. Now, suddenly, we are to be wholly guided by our morality, eh? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [September 21, 2007, 8:39pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/106 "2007-09-21T20:39:21Z")
Yes, lets bring the argument down to definitions of legalistic terms, great progress will, no doubt, directly result. Let’s start with “justice”: Do you agree, or no, that “justice” is best served when the innocent have the opportunity to prove their innocence? Outside of the benefits that we shorthand as “habeas”, how do you propose to provide these? How do you propose that we prove that we really _are_ the Americans, and not some two-a-nickle shabby counterfeit? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 21, 2007, 8:44pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/107 "2007-09-21T20:44:14Z")
[QUOTE=elucidator] Just give me your best guess, **Bricker and John**. How many current detainees aren’t guilty of much of anything? Do we brush them aside for expedience sake? Absent the sort of protections we offer the lowest criminal…confronting your accusers, meaningful counsel, that sort of thing…what chance does an innocent man have? Are we to be ashamed, or merely uncomfortable with our own principles? [/QUOTE] Well, let’s see. In post #40 of this thread I said: > [@John Mace](#): > > Now, I’m not one to call for throwing the alleged enemy combatants into our criminal court system, but we can do much, much better at giving them fair trials with at least some degree of oversight from the courts. Frankly, though, I think we’d be better off just letting most of them go. For the few real “enemy combatants”, like Kahlil Sheik Mohammed, we should be able to make a case against them without trashing our own values. I actually don’t think we’re all that much in disagreement on the specifics here, **elucidator** , even if we may not agree on the abstract principle of what is the nature of human rights. Why you seem to want to act as if we are on opposite sides of this debate is beyond me. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [September 21, 2007, 8:47pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/108 "2007-09-21T20:47:13Z")
[QUOTE=Bricker] …Do you see the difference? [/QUOTE] Battlefield, my ass! Prove it! Prove that the majority of these detainees were captured on “the battlefield”. And if such is the case, could you please explain why we have had to let so many go, because they were entirely innocent? Pure smokescreen, counselor. Human beings have human rights whether they are American criminals or dumfuk Afghan goatherds. You hope to parse and define your way out of a dilemma, how do you define them out of being human? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [September 21, 2007, 8:51pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/109 "2007-09-21T20:51:07Z")
[QUOTE=John Mace] …Why you seem to want to act as if we are on opposite sides of this debate is beyond me. [/QUOTE] I accept your abject capitulation with my customary charm and good grace. (Yeah, I know that’s not what you meant, just having a bit of fun with you, and I _loathe_ smilies…) ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [September 21, 2007, 8:53pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/110 "2007-09-21T20:53:07Z")
[QUOTE=Bricker] Just let someone opposed to same sex marriage, or adultery, or prostitution, or pornography, or gambling suggest that we should resolve the issue on moral grounds, in a moral context, and the fur will fly. We’ll hear how he is seeking to impose his morality on the country, and legislating morality is wrong. Now, suddenly, we are to be wholly guided by our morality, eh? [/QUOTE] It’s the difference between public morality and private morality. A distinction so common it is in Black’s Law Dictionary. That is, there are things which we disagree with on moral grounds which we nevertheless do not believe the government ought to legislate against–also on moral grounds. Its a common distinction in the law, **Bricker** , one that I’m sure you’re aware of despite your tendency to make the argument you just made above. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 21, 2007, 9:16pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/111 "2007-09-21T21:16:07Z")
[QUOTE=elucidator] Yes, lets bring the argument down to definitions of legalistic terms, great progress will, no doubt, directly result. Let’s start with “justice”: Do you agree, or no, that “justice” is best served when the innocent have the opportunity to prove their innocence? Outside of the benefits that we shorthand as “habeas”, how do you propose to provide these? [/quote] Wait a second. There’s a substantial subset of the benefits of habeas that I support here. But there’s no “shorthand,” in play. _Habeas corpus_ has a specific meaning in law. It’s not a shorthand list of due process rights. I propose that detainees be given a meaningful opportunity to challenge their classification. And that includes the general right to hear the evidence against them, to confront the witnesses against them, and to have assistance of counsel. All of those would be subject to similar restrictions as exist in the criminal process – for example, the right to confront witnesses in criminal practice is not absolute, because under some circumstances hearsay is admissible. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 21, 2007, 9:20pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/112 "2007-09-21T21:20:12Z")
[QUOTE=elucidator] Battlefield, my ass! Prove it! Prove that the majority of these detainees were captured on “the battlefield”. And if such is the case, could you please explain why we have had to let so many go, because they were entirely innocent? [/quote] You’re reframing the question – you’re saying all people, everywhere, held by American power are entitled to go before a civilian judge and have their case adjudicated. I pointed out the case of a battlefield capture as one example of there being no such entitlement, and a good thing too. Now you’re asking me to show that the majority of these detainees were captured on a battlefield. What you should be doing is either accepting or objecting to the idea that a battlefield capture is a good example of a situation in which we should not permit access to civilian courts. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 21, 2007, 9:26pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/113 "2007-09-21T21:26:05Z")
[QUOTE=Richard Parker] It’s the difference between public morality and private morality. A distinction so common it is in Black’s Law Dictionary. That is, there are things which we disagree with on moral grounds which we nevertheless do not believe the government ought to legislate against–also on moral grounds. Its a common distinction in the law, **Bricker** , one that I’m sure you’re aware of despite your tendency to make the argument you just made above. [/QUOTE] And how might we objectively distinguish those issues which we believe have a moral basis and we believe the government SHOULD legislate on from those moral issues on which we believe the government should remain silent? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [September 21, 2007, 9:52pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/114 "2007-09-21T21:52:05Z")
[QUOTE=Bricker] And how might we objectively distinguish those issues which we believe have a moral basis and we believe the government SHOULD legislate on from those moral issues on which we believe the government should remain silent? [/QUOTE] Well, they are clearly not easily distinguished. How we ought to do so is an interesting side question and one I’d be happy to participate in in another thread (though I’m not sure I have much new to add beyond the conventional literature, but I’d be interested to see your rebuttal to those arguments). But in this thread, I’m merely pointing out that using morality as a guide in public morality doesn’t necessarily imply that one is then obligated to legislate private morality. There is an obvious and well-accepted conceptual distinction regardless of the degree to which we can draw an objective bright line. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 21, 2007, 9:55pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/115 "2007-09-21T21:55:46Z")
[QUOTE=Richard Parker] Well, they are clearly not easily distinguished. How we ought to do so is an interesting side question and one I’d be happy to participate in in another thread (though I’m not sure I have much new to add beyond the conventional literature, but I’d be interested to see your rebuttal to those arguments). But in this thread, I’m merely pointing out that using morality as a guide in public morality doesn’t necessarily imply that one is then obligated to legislate private morality. There is an obvious and well-accepted conceptual distinction regardless of the degree to which we can draw an objective bright line. [/QUOTE] I agree that the distinction exists; that wasn’t my point. It’s that proponents of using morality as a yardstick here have failed to show why this falls on their side of the line. Undoubtedly the Westboro “God Hates Fags” Baptist crowd would be eager to explain how public morality mandates their own ideas. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 21, 2007, 10:19pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/116 "2007-09-21T22:19:29Z")
[QUOTE=elucidator] Yes, lets bring the argument down to definitions of legalistic terms, great progress will, no doubt, directly result. Let’s start with “justice”: Do you agree, or no, that “justice” is best served when the innocent have the opportunity to prove their innocence? Outside of the benefits that we shorthand as “habeas”, how do you propose to provide these? [/QUOTE] That is precisely the problem here. You are using “habeas” as some sort of shorthand, but some of us don’t know what that means. And instead of getting to the specifics of what that “shorthand” is, we end up launching into a debate about the nature of human rights. That’s why I wanted to get out of that debate and get \*\*Bricker \*\*talking about the specifics of what we should do with the detainees. I suspect that his position, once he spells it out, is not going to be as extreme as you might think. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [September 21, 2007, 10:20pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/117 "2007-09-21T22:20:43Z")
[QUOTE=Bricker] I agree that the distinction exists; that wasn’t my point. It’s that proponents of using morality as a yardstick here have failed to show why this falls on their side of the line. Undoubtedly the Westboro “God Hates Fags” Baptist crowd would be eager to explain how public morality mandates their own ideas. [/QUOTE] So you concede that arguing in favor of morality as a guide to some government action does not imply legislating private morality? That is my sole point. If you’d like to change the argument to whether or not our actions at Guantanamo are a question of public or private morality, just say so and we’ll argue about that new aspect. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 21, 2007, 11:50pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/118 "2007-09-21T23:50:07Z")
[QUOTE=Richard Parker] So you concede that arguing in favor of morality as a guide to some government action does not imply legislating private morality? That is my sole point. [/quote] Conceded. > [@](#): > > If you’d like to change the argument to whether or not our actions at Guantanamo are a question of public or private morality, just say so and we’ll argue about that new aspect. I contend that there is no objective standard by which to judge the question of whether or not our actions at Guantanamo are a question of public or private morality, and that by suggesting that there IS such an objective standard, the proponent of that point makes the same error as those who routinely attempt legislation of other moral issues. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [September 21, 2007, 11:59pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/119 "2007-09-21T23:59:36Z")
[QUOTE=Bricker] …I contend that there is no objective standard by which to judge the question of whether or not our actions at Guantanamo are a question of public or private morality, and that by suggesting that there IS such an objective standard, the proponent of that point makes the same error as those who routinely attempt legislation of other moral issues. [/QUOTE] I am willing to concede this point. I am further willing to concede that I haven’t the slightest idea what you are talking about. Would it be possible for you to phrase that in such a way as it may be understood by the merely brilliant? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [September 24, 2007, 5:55pm UTC](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823/120 "2007-09-24T17:55:32Z")
[QUOTE=Bricker] I contend that there is no objective standard by which to judge the question of whether or not our actions at Guantanamo are a question of public or private morality, and that by suggesting that there IS such an objective standard, the proponent of that point makes the same error as those who routinely attempt legislation of other moral issues. [/QUOTE] It’s something our government is doing to people. How is that **not** a question of public morality?! [Previous page](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823.md?page=5) [Next page](https://boards.straightdope.com/t/senate-pubs-block-bill-to-restore-habeas-corpus-rights-to-terrorist-detainees/419823.md?page=7)