http://www.cbc.ca/story/world/national/2005/08/11/arar-lawsuit050811.html
Countdown to Canadian Consular advisory to avoid travel to the US in 5…4…3…
No question is apparent here. This is probably not the correct forum.
Someone’s confused about what forum he’s in. And that would be me.
Oh boy. So not only is the US definitely abandoning the concept of having in-airport transit areas outside their immigration perimeter, but they have created an extraterritorial status without constitutional rights that can apply to people no matter where they are physically in the US?
There goes the revenue from international travelers changing planes in NYC and LA and Honolulu. Air Canada is trying to position itself (and Toronto) as the place to change planes for people going from Europe to Central and northern South America. I expect an upsurge in flights between Europe and Brazil as well.
Next time I go to Australia, I am going via Vancouver and Fiji, or eastwards. I am NOT going via Hawaii. I no longer trust the US government.
Truly disgusting.
Here’s a debate topic: I think this is wrong. The Constitution says that everyone in this country is entitled to the protection of American law. The President swears an oath to “preserve, protect and defend the Constitution of the United States” not to look for loopholes to get around it. Congressmen and judges also swear oaths to support the Constitution. I guess there must have been a lot of crossed fingers.
Oh, there be a debate a coming. A-yup, smell it in the wind I do.
If the US government is really going to stand by the ridiculous contention outlined in the linked article, it would be irresponsible indeed if other countries did not warn their citizens that they could be arbitrarily detained and held incommunicado by US officials indefinitely, even if not traveling to the US. They should further advise thier citizens to avoid travel that might transit a US port unless or until this policy is modified or abandoned. This is a serious enough issue that a word to one’s elected representatives may be in order.
That said, posting a one-liner and link in this forum is not really the done thing.
If you don’t mind, I’ll take the liberty of rephrasing the OP as a question: with the photos of Abu Ghraib indisputable, and at least some of the tales of prisoner abuse at Gitmo probable, does this make the U.S. a human rights abuser along the lines of, say, the Soviet Union? If not, why not?
Lets not get ridiculous here, What the US is doing in these cases and Gitmo is wrong buts not even close to the Soviet Union. Millions were killed in collectivization and thousands upon thousands of dissidents were “disappeared.” Making comparisons like this will only change the debate from these actions being bad to being not as bad as other actions. Lets stick with debating this issue and not get sidetracked by absurd and largely meaningless comparisons.
First, I should say that I disagree with the government’s position. That said, is the quote above technically correct? I’ve heard some talking-heads argue that only U.S. citizens are afforded the protection (and rights) of American law by the Constitution. Hopefully, someone will not only be able to supply article and section, but some law references to back them up.
Second, if I wanted to argue the point (which I don’t particularly, I’m just curious), I’d ask: is there a difference in legal standing of a person in an airport and someone off the premises? For instance, let’s say two people arrive at LaGuardia to find that they’ve missed their connection and they’re stuck there overnight (for whatever reason; it’s irrelevant to the point). One decides to wait in the terminal, sleeping uncomfortably on the floor at the gate. The other leaves (leaving an airport has never struck me as an issue; perhaps it is for foreign citizens?), gets a room downtown, and returns to the airport the next day. Is the person who leaves doing something illegal? Do airports (or people on their grounds) have some particular legal status that people in other places do not? In other words, isn’t LaGuardia “US soil” just as much as downtown NYC?
The US is unusual in that it does not really have ‘transit lounges’. In order to change planes passing through the states one has to enter the US through normal immigration channels. Other countries have transit lounges that do not require passage through immigration.
I suspect that once one has cleared immigration one would be a landed passenger with those few rights that the Patriot Act and other anti-human rights legislation allows a non-American whilst in the US. However, before one is landed I suspect that the Bush admin would like to make nice clean disposals- extraordinary renditions to third countries- without the courts sticking their noses in.
Well, here’s the specific provisions of the U.S. Constitution relating to legal rights in the criminal process:
Fifth Amendment
The use of the word “person” and “accused” here would seem to me to have significance. They are very general terms, without any suggestion that they are restricted to citizens. In fact, elsewhere in the Constitution (e.g. - in the elgiblity provisions for election to Congress and the Presidency), there are references to citizens, which suggests that “persons” is not intended to be restricted to citizens.
This distinction is expressly made in the Fourteenth Amendment
The first reference to “persons” is immediately modified by “born or naturalized”, which in turn effectively becomes the defintion of “citizen.” So “person” standing alone is not the same as “citizen” - only “persons born or naturalized in the United States” are citizens. That suggests that “persons” standing alone has a broader meaning than “citizen”, and therefore the subsequent references to “person” is not restricted to citzens of the United States.
Northern Piper already quoted the relevant passage: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. This was intended to say that non-citizens have the same rights before the law as citizens and has always been interpreted as such. An illegal alien or a foreign tourist have the same due process rights as an American citizen if they get arrested. Anyone in the United States is entitled to the protection of American law.
Except now this is no longer true. This new finding says that somebody in an American airport in transit to from one foreign country to another, is not legally considered to be in the United States. To answer one of your questions, this reasoning says that LaGuardia Airport is no longer considered US soil for some people. And because these people are not legally considered to be in the United States, they are not entitled to the protection of American law. They can be arrested for no charge, searched without a warrant or probable cause, denied access to a lawyer or anyone else outside of wherever they’re being held, held forever without ever seeing a judge or being brought to trial, etc.
Now, this particular finding does not apply to American citizens. And, as far as we know, we still have our rights. But it is a shocking display of contempt for the Constitution and there’s no reason to believe that the rights of citizens would not be just as easily ignored if somebody in the government finds it convenient. Let’s face facts; the government has always had the power to simply grab people off the streets and make them disappear into some isolated prison cell, never to be seen again. Governments in other countries do it. But in America, the government overall has always played by the rules. Apparently that’s no longer necessarily the case (and this report is not the first evidence of this). Once the government starts ignoring one part of the Constitution, what’s to stop them form ignoring other “inconvenient” sections?
Just wanted to point out that this isn’t a finding, i.e. judgement, yet. It’s only the argument given by the federal lawyer to the judge in the Arar case. Judge Tager hasn’t ruled on the argument (or the case) yet.
From the CBC News article linked to by the OP
Is this a correct account of the US Justice Department’s position? (i.e.: pulling out fingernails and such not being torture)
To be fair, most countries would claim that foreigners not deemed to be ‘landed’, ie officially admitted to a country, do not gain the rights that go with being ‘present’ in a country. For instance, once one has been admitted to Britain, one gains a series of additional rights about limitations of powers of the state and rights of access to the courts that are not open to people who have not been admitted; those in transit do not get these rights. The same is the case for France (remember the asylum seeker who lived for years at Paris CDG.
The main differences with the US case, are not its claim that protections of the constitution applicable to residents/visitorsdo not apply (this is pretty universal for any country) but that
a/ it forces people to ‘enter’ the country in order to transit (potentially and accidentally giving people more apparent rights. This potentially gives people more rights than the Bush Admin wants.
and
b/ the US is building a reputation as kidnapper (extraordinary renditioner), torturer, illegal jailer, and the center of many other actions that are major Human Rights Abuses in the rest of the civilized world. The Bush Admin wants to be able to do this with impunity from the courts.
Even if the practice can be defended legally, I don’t see how it can be defended in a way that is compatible with the things the US stands for.
Ring any bells for anyone?
The Communist Manifesto? 
Until December 2004 it was the US Govt policy that pulling out finger nails (among many other horrendous acts) was not torture. It claimed that torture was only
‘pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”’
This Govt circular withdrew that:
http://www.usdoj.gov/olc/dagmemo.pdf
and now pays lip service to its obligations under various treaties by sending people to be tortured by other, non-western, regimes.