It is a purely secular document which is what I was pointing out. No god or religion need exist for it to hold any validity. Using a religious justification for the application of the COTUS is not a stretch but a tear. Belief or non-belief is besides the point. The COTUS does not assign the origins of any rights or responsibilities to any supernatural origin. If we insist on trying to do so we lessen the significance of that document to nothing more than an extension of "God's Will" and we all know how that discussion will go... whose god?
SCOTUS Finally settles the Guantanamo Bay Argument
- Thread starter applesanity
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It is a purely secular document which is what I was pointing out. No god or religion need exist for it to hold any validity. Using a religious justification for the application of the COTUS is not a stretch but a tear. Belief or non-belief is besides the point. The COTUS does not assign the origins of any rights or responsibilities to any supernatural origin. If we insist on trying to do so we lessen the significance of that document to nothing more than an extension of "God's Will" and we all know how that discussion will go... whose god?
Musketeer - although I am a Christian, I partially agree with your "Constitution is a secular document" argument, but I would add one perspective. I'm not a legal scholar and I haven't followed this closely, so please correct me if my facts are wrong. The Guantanamo case is a habeus corpus case. COTUS refers to the Privilege of the Writ of Habeus Corpus, but does not define what that means. Why? How can we know what they meant?The authors and signers were all steeped in English Common Law roots and understood Habeus Corpus clearly - it was part of the tradidtion of natural rights, that is God-given rights. For things like Habeus Corpus, our understanding of COTUS is incomplete without understanding what the idea meant to the authors, and I suggest that they did not have a purely secular view of rights.
Again, I'm a programmer, not a scholar of jurisprudence, so fire away in the spirit of constructive dialog.
Again, I'm a programmer, not a scholar of jurisprudence, so fire away in the spirit of constructive dialog.
Sigh. Read the document: the first, second, fourth, and ninth amendments restrict the government from violating certain rights. This clearly shows that the framers believed that people have certain rights, and that rights do not flow from government. They believed that governments derived powers from the governed, not vice versa. See the Declaration of Independence.
Where did this theory originate? John Locke, the father of classical liberalism. (Classical liberalism is closest to modern day libertarianism. Contemporary liberalism is closest to socialism.)
ETA: Many of the founders were Deists. That is why they chose the word "creator" instead of "God"
I am an atheist, and I still recognize that rights preexist governments, and governments are properly instituted to protect the rights of individuals. Improperly used, they only infringe upon rights.
Where did this theory originate? John Locke, the father of classical liberalism. (Classical liberalism is closest to modern day libertarianism. Contemporary liberalism is closest to socialism.)
ETA: Many of the founders were Deists. That is why they chose the word "creator" instead of "God"
I am an atheist, and I still recognize that rights preexist governments, and governments are properly instituted to protect the rights of individuals. Improperly used, they only infringe upon rights.
I agree that rights pre-exist gov'ts. They are the property of the individual, as all things in nature are, until given away or taken by force. Man creates gov't limiting documents to prevent the society he lives in from removing those rights through force which he considers critical and likewise surrendering rights in order to achieve a social goal
The rights always existed before the law though. The law and COTUS don't create rights, it tells a gov't merely that the populace refuses to surrender some while acceding to the infringement of others. Our nation was well founded by recognizing this first and foremost. No man is born subservient to another by right of birth (not going down the slavery road please) and that the gov't here would be subservient to the people... sadly things have gone a little awry.
While Locke was certainly known to many colonials, it may unduly romanticise the project of constitutional construction to make them puppets for Locke.
I don't think colonists generally believed that men had rights that pre-existed government, but that englishmen, especially land owning ones had rights against government that they were being denied.
I also think you saw a split on that very early on. Framers were planters and merchants; they knew perfectly well that many men were born to be subservient to those smarter, more energetic, and with greater foresight than average.
If you really believe that individuals possess all rights, and only conditionally give them up by agreement in order to reach agreed social goals, then you mjight conclude that the Gitmo detainees have rights to leave, habeus hearing or not, because they never consented to US jurisdiction. I don't see that as workable.
MedicineBow
New member
Lol.
Nate45, I respectfully disagree with your position. The habeus corpus clause in COTUS has no language restricting it to citizens only or US soil only, therefore I think it is a constraint on the federal government all the time, everywhere. It makes exceptions for invasion or rebellion. Does either of those apply? It's not rebellion against our government, since they are foreigners. If they were attacking us on our soil, it would clearly be invasion. If the executive branch contends that they are invaders as enemy combatants, okay - put them on trial and prove it. To say that they are Al Qaida because they wouldn't have been detained if they weren't is silly. Requiring the executive branch to abide by the Constitution is the only reasonable course: "The Privilege of the Writ of Habeus Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." I'm glad the judicial branch is holding the executive branch accountable to prove not simply that there is a general threat to public safety, but that the people they are detaining are enemy combatants who pose a safety risk. Otherwise we are in the realm of, "The heck with the Constitution - the government should do whatever it takes to keep us safe." That is the soil out of which tyrants grow. Be careful what new, expanded powers you encourage government to take - they will never relinquish them, and they could be turned against you someday.
Does it have language appliying it to all people everywhere? What is the specific language to which you refer?
Is there any precedent for HC applying to everyone everywhere?
What part of the COTUS gives our courts jurisdiction everywhere?
It is prudent to jealously guard rights, which you correctly observe are rarely returned by the state in good working order. It is another thing entirely to invent rights aginst the state for the enemies of a nation.
U.S.A.'s Concentration Camp?
Gitmo is a peculiar institution. Gitmo is a blight on the landscape of American values. While 'technically' one can make a case that Gitmo detainees are not entitled to the full constitutional rights of due process, the problem transcends the technical legalistic rationale for keeping them in the perpetual limbo of a Concentration Camp.
It's kinda like slavery in the 19th century in the sense one could then legally claim that slaves were not entitled to certain legal rights of due process...but the morality of that interpretation... is bankrupt. A 19th century slave could argueably be a noncitizen, kidnapped from a foreign land, who is now hostile to the United States - and in that sense the detainees at Gitmo have been in the same peculiar boat of slavery.
The U.S. might have had good intentions when it built Gitmo, but more and more there's been a disturbing pattern of uncovering facts that seem to indicate that the detainees are not all enemy combatants or 'terrorists' - and that some of these people could in fact be wrongfully detained.
I f you or I was captured by a foreign Army and misidentied as a terrorist - wouldn't you and I want the legal right to go to a legitimate court and prove to the world our innocence? Is the U.S.A. the sort of nation now that will allow such a person to prove their innocense, or is the U.S.A. now the sort of nation that will detain them/imprison them forever?
The recent Supreme Court Ruling is not a case of Judicial Activism. In fact, the problem of activism is in the Executive Branch of the Bush Administration. The Gitmo problem could have been avoided , if not for the
stubborn arrogant antics of the Bush Administration. In fact, one grows suspicious of what the Bush Administartion fears from the testimony of detainees. Have they kidnapped, detained and tortured a shocking number of innocent people? Is that the problem?
The U.S. Supreme Court has finally ruled, and what is sad - is that the Bush Administration allowed this problem to get so out of control and be forced upon the Supreme Court. Gitmo has damaged the U.S.A.'s international reputation, and Gitmo will go down in history alongside Dachau, Devil's Island and Cool Hand Luke.
Gitmo is a peculiar institution. Gitmo is a blight on the landscape of American values. While 'technically' one can make a case that Gitmo detainees are not entitled to the full constitutional rights of due process, the problem transcends the technical legalistic rationale for keeping them in the perpetual limbo of a Concentration Camp.
It's kinda like slavery in the 19th century in the sense one could then legally claim that slaves were not entitled to certain legal rights of due process...but the morality of that interpretation... is bankrupt. A 19th century slave could argueably be a noncitizen, kidnapped from a foreign land, who is now hostile to the United States - and in that sense the detainees at Gitmo have been in the same peculiar boat of slavery.
The U.S. might have had good intentions when it built Gitmo, but more and more there's been a disturbing pattern of uncovering facts that seem to indicate that the detainees are not all enemy combatants or 'terrorists' - and that some of these people could in fact be wrongfully detained.
I f you or I was captured by a foreign Army and misidentied as a terrorist - wouldn't you and I want the legal right to go to a legitimate court and prove to the world our innocence? Is the U.S.A. the sort of nation now that will allow such a person to prove their innocense, or is the U.S.A. now the sort of nation that will detain them/imprison them forever?
The recent Supreme Court Ruling is not a case of Judicial Activism. In fact, the problem of activism is in the Executive Branch of the Bush Administration. The Gitmo problem could have been avoided , if not for the
stubborn arrogant antics of the Bush Administration. In fact, one grows suspicious of what the Bush Administartion fears from the testimony of detainees. Have they kidnapped, detained and tortured a shocking number of innocent people? Is that the problem?
The U.S. Supreme Court has finally ruled, and what is sad - is that the Bush Administration allowed this problem to get so out of control and be forced upon the Supreme Court. Gitmo has damaged the U.S.A.'s international reputation, and Gitmo will go down in history alongside Dachau, Devil's Island and Cool Hand Luke.
You've got it backward.
The HC clause doesn't say anything about rights. It prohibits our government from denying the privilege of writ of habeus corpus, unless required to maintain public safety in a state of rebellion or invasion. It doesn't make exceptions for "if the person is suspected of being an enemy combatant" or "in Guantanamo". It doesn't try to prescribe what foreign governments can do, nor does it address anything whatsoever about rights.
Furthermore, this clause is enumerated in the legislative powers section, so I would suggest that the executive does not have any right to deny habeus corpus unless the legislature passes a law directing it to. But the application of that law would still be subject to judicial review to protect agains denial of habeus corpus when it's not a justifiable matter of public safety due to rebellion or invasion.
Once again I refer to the Eisentrager case, which can be read in its entirety here
But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act. In the pioneer case of Yick Wo v. Hopkins, the Court said of the Fourteenth Amendment, "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; . . . ." (Italics supplied.) 118 U.S. 356, 369 . And in The Japanese Immigrant Case, the Court held its processes available to "an alien, who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here." 189 U.S. 86, 101 .
Since most cases involving aliens afford this ground of jurisdiction, and the civil and property rights of immigrants or transients of foreign nationality so nearly approach equivalence to those of citizens, courts in peace time have little occasion to inquire whether litigants before them are alien or citizen.
It is war that exposes the relative vulnerability of the alien's status. The security and protection enjoyed while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us. While his lot is far more humane [339 U.S. 763, 772] and endurable than the experience of our citizens in some enemy lands, it is still not a happy one. But disabilities this country lays upon the alien who becomes also an enemy are imposed temporarily as an incident of war and not as an incident of alienage. Judge Cardozo commented concerning this distinction: "Much of the obscurity which surrounds the rights of aliens has its origin in this confusion of diverse subjects." Techt v. Hughes, 229 N. Y. 222, 237, 128 N. E. 185, 189.
We are at war with the terrorists, Gitmo is not U.S. territory. The inmates there are not U.S. citizens.
But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act. In the pioneer case of Yick Wo v. Hopkins, the Court said of the Fourteenth Amendment, "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; . . . ." (Italics supplied.) 118 U.S. 356, 369 . And in The Japanese Immigrant Case, the Court held its processes available to "an alien, who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here." 189 U.S. 86, 101 .
Since most cases involving aliens afford this ground of jurisdiction, and the civil and property rights of immigrants or transients of foreign nationality so nearly approach equivalence to those of citizens, courts in peace time have little occasion to inquire whether litigants before them are alien or citizen.
It is war that exposes the relative vulnerability of the alien's status. The security and protection enjoyed while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us. While his lot is far more humane [339 U.S. 763, 772] and endurable than the experience of our citizens in some enemy lands, it is still not a happy one. But disabilities this country lays upon the alien who becomes also an enemy are imposed temporarily as an incident of war and not as an incident of alienage. Judge Cardozo commented concerning this distinction: "Much of the obscurity which surrounds the rights of aliens has its origin in this confusion of diverse subjects." Techt v. Hughes, 229 N. Y. 222, 237, 128 N. E. 185, 189.
We are at war with the terrorists, Gitmo is not U.S. territory. The inmates there are not U.S. citizens.
That's a strange generalization. Applying your statement at face value, do you mean (for example) that when Congress is prohibited from making laws respecting the establishment of religion, that doesn't apply to enemy aliens, and therefore Congress can pass laws establishing religion for enemy aliens? Of course you don't mean that. So your statement is a little off track. You need to be more specific and make some distinctions.
Perhaps you meant to say that the Habeus Corpus clause of COTUS doesn't apply to enemy aliens. I agree. The habeus corpus clause applies to our government, and it specifically prohibits our government from denying the privilege of writ of habeus corpus.
The COTUS authors were pretty good about saying what they meant - if they had meant that the privilege of writ of habeus corpus shall not be suspended except for a specific group of people, they would have said so. They did provide some exceptional circumstances when in cases of rebellion or invasion public safety requires, Congress could suspend it. The judiciary is doing its job in this case of holding the executive branch accountable.
The root of judicial activism is when people take a part of the constitution that limits government, and try to tease a right out of it, then argue of who should get that right. So while you don't intend to, you are actually promoting a mindset of judicial activism when you distort the simple limitation on government power in the habeus corpus clause and turn it into a right that some people have and some people don't.
The Eisentrager case is a perfect example of judicial activism - turning a clear limitation on government power into a "constitutional protection" that has geographic boundaries. It's pretty clear: there are some things COTUS prohibits our government from doing.
part swede
New member
For this decision to give detainees more rights in the future, we would have to still capture them alive....Therefore, ultimately maybe this will help terrorists less than they think.
RedneckFur
New member
I think this never should have became an issue. The geneva convention explains how prisoners of war are to be treated.
I do not agree with our goverment playing word games, coming up with "enemy combatant" to get around an international treaty. Way I see it, if our goverement isnt willing to call their prisoners "prisoners of war" then they should also admit that we're not at war.
I do not agree with our goverment playing word games, coming up with "enemy combatant" to get around an international treaty. Way I see it, if our goverement isnt willing to call their prisoners "prisoners of war" then they should also admit that we're not at war.
It wouldn't be the first time I got something wrong. However your lack of direct response to my questions suggests that the answers don't favor your position.
If the right to bring a HC petition isn't dealt with in the COTUS, why do you think a clause limiting the condition under which it can be suspended would required that it be offered to all people without limitation?
You know there was such a congressonal enactment, correct?
What is the expertise of the Supreme Court in matters of national security?
If the power is enumerated as a legislative one, on what basis would a US court assert jurisdiction on a matter in which Congress has divested federal courts of jurisdiction?
Certainly a court expanding the scope of the writ beyond all historical precedent is at least as constitutionally dubious as the branch of government tasked under the COTUS with defining its limits actually asserting its proper authority.
MedicineBow
New member
It sure won't be our president and vice-president. Those boys decided to sit out the one where we looking for guys to go mix it up.