“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?
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?
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.
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.
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?
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?
Well, let’s see. In post #40 of this thread I said:
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.
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?
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.
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.
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.
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?
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.
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.
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.
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.
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.
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?