U.S. Government: "U.S. Citizen 'Enemy Combatants' Have No Legal Rights.

Great Debates
81

[hijack]
Monty you have a different conception of the nature of “rights” than does sailor. he believes that there are innate human rights that exist outside of a legal framework. You believe that human rights are a purely legal creation. While an interesting discussion in itself, it’s not really relevant to the OP because in the U.S. there is an established framework of rights. The issue is whether it’s a good idea for the U.S. government to be able to ignore that framework at will.
[/hijack]

The real issue in my mind is not so much that it is an extremely bad idea, regardless of the the reason, for the U.S. government to be able to detain its citizens incommunicado without a hearing. The real issue is how the government can even advance such a position. To me it is a forceful reminder that it is institutions and the rule of law that protect freedom in the U.S., not the good intentions of individuals, even democratically elected individuals. This is something to keep in mind the next time some well-meaning politician or bureaucrat wants to institure a national ID system or some other convenient, yet potentially oppressive, increase in governmental authority. A U.S. federal appellate judge, Alex Kozinski, said it best.

**

82

I guess what it comes down to is, do we apply the constitution to american citizens because they are american citizens or because they are people?

83

I think the world has long since given up on thinking that the United States has uniquely consistent moral principles. When these principles get too inconvienient, they go out the door.

I’m not saying that the U.S. is necessarily making the wrong decisions here, but I do think that we should realize that there are long term costs to such actions, some of which include our right to brag about being morally superior. People don’t appreciate how profoundly choices in the past affect people’s moral opinions in the present.

If you look over Osama Bin Laden’s ravings, you’ll see that he draws a very scary moral principle directly out of past U.S. actions.

He concludes that when you want to win a fight against a nation without risking too many lives in direct confrontation (in his case, attacking and forcing out the U.S. occupation of Saudi Arabia): or at least to get them to back down, it is okay to kill masses of their citizens in a single act of destruction in order to convince those citizens and their leaders that the cost of their continued resistence to demands is too high.

Where does he draw this principle from? Obviously: Hiroshima.

And you know what? If I except Hiroshima as justifiable, I’m not sure how I can claim that WTC is not. Obviously, I do not agree with his cause, or think that it is a just one. But we are talking about the moral acceptability of TACTICS here, not of who is using them for what and whether it’s justified (since both sides will disagree on that anyway, getting us nowhere).

84

Obviously?

85

The attacks on WTC are the same as the bombing of Hiroshima? WTF?

86

—Obviously?—

Yes, since I was reffering to a particular U.S. action described in detail, I figured it would be no surprise that it was that that I was referencing. I didn’t mean to imply that my conclusion was obviously true, just that the direction of my argument was obvious.

—The attacks on WTC are the same as the bombing of Hiroshima? WTF?—

The same? Where do you get that idea?

Rather, they simply follow the same reasoning in regards to what is an acceptable military tactic to attain a given end of importance. Whether that is morally justifiable is a matter of debate between fanatics like Osama and us. Clearly we think that we’ve won that debate, hands down, and don’t think that his ends are worth even a single civilian life. But he evidently does think so. That’s almost always the case in violence.

The question I’m considering is one of what tactics are acceptable, no matter WHAT the cause.

People argue that terrorism is never acceptable. I don’t know how I feel. But I do know that Hiroshima was terrorism in every important sense, and indeed many DO think it was justifiable, and I might be convinced that it was.

But if so, then we cannot say that terrorism is unacceptable as a tactic. But don’t confuse that with no longer being able to say that we can say a particular usage is wrong. Clearly, we still can, and do, the exact same way we can argue that some instances of violence are not justifiable.

The problem is that that ground is a little weaker as a position, because obviously its no longer a single principle of means (no terrorism!) but rather one of the justifiability of ends (WTC was an insane and horrible act of depravity… but then some people feel the same way about Hiroshima, and the point is debatable)

Personally, as a matter of foriegn policy, I would much rather keep the universal principle that terrorism is never justifiable for any reason (just like the POW rules).

87

Well, that’s exactly where we disagree, Apos. I think it’s disingenuous at best to call the bombing of Hiroshima terrorism.

88

— I think it’s disingenuous at best to call the bombing of Hiroshima terrorism.—

How so?

It’s purpose was to demonstrate that the costs of not surrendering would be prohibitively high. It was not to achieve a military objective: it was to send a message to the Japanese people: submit, or we will exterminate you.

In the end, that strategy worked to acheive our objective. More debatably, it saved millions of lives to boot.

But whether a particular tactic is terrorism or not should not depend on whether you approve of it or not. What sort of definitional standard is that? If there are some usages of terrorism which one can agree are good, then it is silly to demand that terrorism is always wrong.

Further, in response to a common objection, I don’t see what difference it makes that a government was or was not involved in deciding to do it, or whether war had been officially declared or not.

89

“And you know what? If I except Hiroshima as justifiable, I’m not sure how I can claim that WTC is not.”

You’ve been reading Chomsky, again, haven’t you…

90

I am sure Chomski would know the difference between “accept” and “except”.

91

—You’ve been reading Chomsky, again, haven’t you…—

Nope.

Hilarious how you seem to think that counted as an argument, isn’t it?

—I am sure Chomski would know the difference between “accept” and “except”.—

Clearly, my mistype demonstrates that I am not “Chomski.” Bravo.

92

Apos, if I justify one act of violence I don’t automatically justify all acts of violence. If I vow to eat one type of ice cream, I am not obligated to try all types of ice cream.

Almost any two events can be considered “the same” when we are allowed to pick and choose the context and ignore what was happening. The context of Hiroshima was a world war. The context of the WTC attack was not a world war. This alone should give one pause in trying to link them.

“If we justify our past, then the terrorists have already won.” :confused:

93

Well if you’re that principled I’d give the UK a miss. They did collude with terrorists and actually helped one terrorist organization with their targeting and intelligence. A Licence to Murder : A BBC Panorama episode . I’m too busy to start and get involved in a thread about this but it is of great interest.

Sorry for the hijack

94

If true, this is indeed a shameful episode in British history. I don’t want to get too deep into Northern Ireland, but the British Government certainly used internment (without jury trial) and improper interrogation procedures (which verged on torture).
Remember they were faced with decades of terrorism, and many other Government have reacted far more violently in such situations.

What lessons can the US draw from this?

  1. This was trying to deal with continuing terrorism when the British required help from only one foreign Government (Eire).
    N.B. The US needs far more international co-operation.

  2. Since we stopped using these illegal techniques, there has been a considerable improvement, although there is still some way to go.
    N.B. I don’t believe the illegal detention is helping the US.

  3. It was noticeable that misguided foreigners, especially in the US, used to send the terrorists money.
    N.B. Creating martyrs prolongs the agony by provoking funding.

So I believe that if the US breaks the law (and introduces new levels of paper-shufflers/ intelligence decisions) purely to enhance Bush’s chances of re-election, then it will certainly jeopardise the international alliances it needs, plus encourage misguided support for these terrorists.

Monty,

perhaps you could clarify the status of the area where these detainees are held.
Is it some Cuban land the US rents (despite having an embargo with Cuba)?
Have the Cubans ever accepted the US rent?
If the Cubans attempted to reclaim the area, would the US use deadly force to repel them?

Is this area the only place in the world where the US can hold people and deny them their legal rights?
(If deposited in Britain, for example, they would have to be given a hearing before a court pretty quickly. As you know, already at least one ‘terrorist’ has been released by a UK court through a complete lack of evidence.)

You quoted the Geneva Convention:

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

So if these detainees are Taleban fighters (the previous Afghan Government), the US is breaking the Convention.
Luckily we know that they’re not because that’s been proved in a court of law… :rolleyes:

95

What happened in NI.

Internment led to a big upsurge in support for the nationalist cause and the IRA both nationally and internationally.

Refusal to even entertain prisoners POW requests (they should not have been POW’s IMO BTW) lead to the hunger strikes and more martyrs to the cause. More support for the IRA.

Civil Rights were held back from a section of society leading to marches leading to Bloody Sunday leading to, yes you guessed it more support for the IRA.

It was only when the British Government moved away from their stringent views and started to accept that everything was not black and white that things started to move.

Situations in the US and Israel are vastly different from NI but IMO the administration and a lot of the population are still in Black Hats and White Hats mode. While in this mode there is only one way to stop a terrorist threat. Kill’em all. This is a impossible goal.

This thread could be hijacked to b’jaysus by me so I’ll shut up now :slight_smile:

96

1/ Denying GC rights to Gitmo detainees

2/ Arresting and holding in-communicado, Muslims with visa irregularities

3/ Denying US citizens their rights under the constitution

4/ ?

5/ ??

6/ ???

First They Came for the Jews
First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.
Pastor Martin Niemöller
Still watching and still speaking out

pjen

97

I’m not Monty, but I can answer glee’s questions.

Leased, actually, as a result of the Spanish-American War.

Yes, but not since Castro took over. The rent payments are very small anyway.

All those machine guns emplacements are there for a reason, I’m sure.

The highlighted provisions are all unfulfilled (although the third might be arguable). Therefore, GC Article 4(6) does not apply.

98

Here’s a little legal tidbit for the debate. In 1942, 8 German saboteurs were caught on American soil. One of the saboteurs was, most likely, a citizen of the United States. These saboteurs were tried and convicted by a military tribunal, and then filed an appeal that went to the United State’s Supreme Court. The defense argued that the President had no authority to, by Presidential Proclamation, order that these people didn’t have to be tried by a federal court, but could be tried in a military tribunal, and that certain Constitutional rights, like the rights to trial by jury, or to a Grand Jury indictment, did not apply to these saboteurs. They were considered unlawful combatants and, as such, were not afforded all the rights granted in the Constitution. It’s all in Ex Parte Quirin, 317 U.S. 1 (1942).

Now, I think part of the logic and reasoning in Quirin is applicable to the administration’s actions. I don’t believe the United States is required to give every person it detains a jury trial, complete with all that entails. I have a bit of a problem getting my mind around the fact that non-citizens of Al Queda would be afforded the protections the Constitution grants to U.S. citizens, citizens that they wholesale slaughtered on September 11, 2001. And historically, I cannot imagine the requirement that any POW the US captured in any war, should get a jury trial. It’s dangerous and unworkable.

Of course, when the enemy belligerent is an American citizen (although I would think that their actions act as in fact denouncement of their citizenship), the lines are much more blurry. I believe that **if certain conditions are met, ** the President would have the power to order military tribunals to try even citizens of the United States, if they are acting as enemy combatants. Quirin again becomes a guidepost, because in that case, there was: 1) A Congressionally Declared War; 2) the President’s actions were specifically allowed by statute; 3) The Courts held some authority of review.

In this case, Bush is missing/arguing against all three, which, in my view, makes his actions a violation of the Separation of Powers. Until Congress formally declares war, and grants Bush power to establish military tribunals “in a time of war.”, and Bush allows the Courts the power to review the Executive Branch’s determination of who is an “enemy combatant”, then Bush is acting in violation of the Constitution. However, if these pre-requisites are met, I have no problem with enemy combatants, even if they are United State’s citizens, being tried in military tribunals rather than in federal court. Bush has skipped some major steps in his grab for more power.

Boy, I really missed pjen. Oh, wait. No I didn’t. I was thinking of someone else. Maybe that case of strep throat combined with the stomach flu, that I had in 8th grade. I missed that more.

99

minti, what I have a problem with is that the government and military of the USA are unilaterally deciding that these people are not POW, are not entitled to any due process, are not subject to any protections and nobody has any say in this matter. They are obviously trying to circumvent both law and morality.

Also, the fact that war was not declared, that they were not wearing uniform etc may be a technically correct way to deny them POW status but it would benefit the US to interpret things more leniently. The Geneva convention was done with a different type of war in mind; a war where gallant soldiers faced each other on the battlefield. The Talibans did not fit this description but neither did many of the allied special forces which were not fighting openly or wearing uniform. It would benefit the US to enlarge the definition of legal combatant as much as possible. Forst it would benefit them if and when any American soldier finds himself in the same situation but also it would greatly enhance the image of the US as a country subject to the rule of law and not a hypocritical and bloodthirsty nation which preaches one thing and practices another when it suits them.

100

oops, sorry minty.

Hamlet you seem to be missing a point which many others seem to be missing as well. A POW is not a criminal. A lawful combatant can be held for the duration of the hostilities but he is not a criminal and there is no need for any judicial proceeding of any kind.

The problem I have is that the US is just dancing around definitions. They are not POW so they are not entitled to the protections of POWs. They are not common criminals so they are not entitled to the protections of common criminals. They are not on US soil so they are not entitled to the protections afforded to those on US soil. They are not on foreign soil so they are not entitled to the protections of those on foreign soil. It is a big farce. The US could just as well build a floating platform in the middle of the ocean, declare it has no jurisdiction there, put the prisoners there, their hands bound behind their backs, and let a few Americans take care of them. Technically it may be not a crime. In every moral sense it is circumventing the spirit of the law.