Latest from Down Guantanamo Way
Brian Doherty | December 3, 2004, 6:54pm
The latest from the hearings over whether the lawsuits from Guantanamo detainees can proceed, via Associated Press:
Attorneys for the prisoners argued that some were held solely on evidence gained by torture, which they said violated fundamental fairness and U.S. due process standards. But [Principal Deputy Associate Attorney General Brian] Boyle argued...Wednesday that the detainees "have no constitutional rights enforceable in this court."
U.S. District Judge Richard J. Leon asked if a detention would be illegal if it were based solely on evidence gathered by torture, because "torture is illegal. We all know that."
Boyle replied that if the military's combatant status review tribunals (or CSRTs) "determine that evidence of questionable provenance were reliable, nothing in the due process clause (of the Constitution) prohibits them from relying on it."
Those CSRT panels are the result of the government's attempts to deal with the aftermath of the Supreme Court's June decisions in Rasul and Hamdi. For more background and insight on these matters, see Reason's January 2005 cover feature--which subscribers (and why aren't you one?) already have, post office willing--by Harvey Silverglate, "Civil Liberties and Enemy Combatants." It's a detailed discussion of why, even after those decisions, the rights of those the government declares "enemy combatants"--and the rest of us--aren't very secure.
Ken Shultz | December 3, 2004, 8:44pm | #
I've learned a lot about this topic from some of the commenters in this forum over the past week, and I'd like to share some of what I've learned.
"Attorneys for the prisoners argued that some were held solely on evidence gained by torture, which they said violated fundamental fairness and U.S. due process standards."
This week, I learned that fundamental fairness doesn't exist unless you're "anti-Semitic" and "anti-American". Also, I learned that words don't mean things. For instance, "evidence", "torture", "fundamental" and "fairness" are all figments of our imagination as is "imagination", or so I'm told.
As a corollary to this, I learned that my rights don't exist apart from the language used to describe them; indeed, they only exist as a by-product of government! Why, we're all completely at the government's mercy! I know; it's shocking, but I thought that, theoretically speaking, something could be legal yet wrong. Turns out, I was the one that was wrong.
"U.S. District Judge Richard J. Leon asked if a detention would be illegal if it were based solely on evidence gathered by torture, because "torture is illegal. We all know that.""
See! That's what I thought! I thought everyone knew that torture was illegal, but then, just this week, some of commenters in this forum taught me that there is a significant distinction between "torture" and "cruel, inhuman and degrading" acts. Once they split that atom for me, I learned that there is no difference whatsoever between "cruel, inhuman and degrading" acts and a "rough interrogation"--AKA good cops just tryin' to do their job.
I also learned why this judge is wrong about it being "wrong" to hold people solely on evidence obtained by torture; it's because these people are
terrorists. You see, terrorists aren't singled out by name as being protected by the right not to be forced to testify against themselves. Why the word "terrorist" isn't even in the Constitution!
"Boyle replied that if the military's combatant status review tribunals (or CSRTs) "determine that evidence of questionable provenance were reliable, nothing in the due process clause (of the Constitution) prohibits them from relying on it."
...Speaking of the Constitution--the due process clause? Please! I also learned this week that the Constitution, a bunch of words, isn't worth anything 'cause it isn't soft and it isn't absorbent.
I'd like to thank every one of you commenters who took time out of your busy schedule this week to teach me all of this. As you're picking out a really nice whip or pair of handcuffs for that special someone in your life, pick up on some of that good ol' holiday cheer too. You deserve it! You've made the world a little brighter for someone for whom the world was confusing and dim. Well I can see the way now, and I'd like to thank all three of you by wishing you and everyone you love a Merry fucking Christmas.
David | December 4, 2004, 1:32pm | #
Ken,
Not that it'll do any good, but I'll give it a shot, it's kind of interesting arguing with someone who lives in a completely different world :)
" I learned that fundamental fairness doesn't exist..."
If you think there is "fairness" in life, then no doubt you'll also be expecting a visit from Santa this X-mas.
"I learned that my rights don't exist apart from the language used to describe them; indeed, they only exist as a by-product of government!"
And this surprised you how? You don't understand that we have the rights that we do because of our consitution and political system? Do you think you'd have a right to due process or say a right to remain silent if you lived in Iran? As for the importance of language in determining rights... why you do suppose it is that our country is overrun with lawyers? Could it be that parsing the language and determining exactly what all those rights cover might be important?
"See! That's what I thought! I thought everyone knew that torture was illegal"
And once again, define torture. If torture is illegal it must have a legal definition. Obviously definitions of what constitutes torture differ, sometimes wildly.
"something could be legal yet wrong"
Lots of things could be legal yet wrong, or conversely illegal but not wrong. I haven't seen anyone here maintaining otherwise. Although maybe there have been. I could've missed it.
"You see, terrorists aren't singled out by name as being protected by the right not to be forced to testify against themselves. Why the word "terrorist" isn't even in the Constitution!"
Foreign terrorists, militants, whatever you want to call them are not citizens of the United States, and no, they are not entitled to the same protections that a U.S. citizen would be. Note I said "foreign." That's a very different thing from labeling a U.S. citizen (like Padilla) a terrorist or enemy combatant, stripping away their rights and holding them indefinitely -- a clearly unconstitutional act in my opinion. I'm worried about the rights of U.S. citizens. Hostile foreigners get whatever rights we decide to grant them.
"..Speaking of the Constitution--the due process clause?"
See above. Merry Christmas to you also :).
thoreau | December 4, 2004, 4:46pm | #
hostile non-citizens bent on attacking the U.S. is quite a stretch in my view
OK, one more time:
How do we know that these non-citizens are hostile and bent on attacking us? Oh, that's right, the government says so.
The same government that lied about the cost of the Medicare bill.
The same government that passes 3200 page bills without reading them.
The same government that gave us Amtrak, farm subsidies, and the FDA.
The same government that burned down the Koresh compound, killed a bunch of kids, and didn't hold anybody accountable.
Yeah, we can take their word for it. Sure.
Don't get me wrong, I'm not saying that all accused terrorists are innocent. I'm just saying that we should have some sort of process to figure out if the people in question are in fact terrorists. If they are, well, I'm no longer interested in their rights. But until we've subjected the evidence to some sort of scrutiny, how can we be confident that the people in question are terrorists?
Hmm, maybe we should have some way to evaluate allegations. We could augment our government to include a third branch that complements the Dear Leader and the Rubber Stamp Legislature. They'd have to judge whether or not the Imperial Branch got things right, so we could give the people in this third branch a title like, um, "judges." And the Executive branch would be barred from punishing a person that it arrests unless a "judge" holds a trial where the person is found guilty in an adversarial process.
Of course, that's a pretty radical notion. It would completely undermine the Perfect Form of Government practiced by the Dear Leader. The only way we could implement this would be if we had some sort of revolution led by long-haired radicals who don't trust authority. But who would ever take them seriously? They'd go around saying things like "That government which governs least governs best" and that would undermine the authority of the Dear Leader. Some of them might even start talking about "checks and balances" and "separation of powers."
Good thing nothing like that has ever happened here!
David | December 4, 2004, 8:31pm | #
Thoreau,
"OK, one more time:
How do we know that these non-citizens are hostile and bent on attacking us? Oh, that's right, the government says so."
Yes, and of course because you don't like our particular government it must be wrong about absolutely everything. I'm sure went to all that trouble to selectively incarcerate at Gitmo, a small number out of all of the various people that have been captured, without any decent evidence that they were associated with Al Qaeda.
Ken,
"Because you asked this question with what feels like a straight face, I'm going to assume you don't know anything about the basics of Libertarianism."
No, I wasn't joking. Telling me to look up Libertarianism in no way invalidates my point. Rather it suggests an inability to form a counterargument, or to explain your own beliefs.
"If a thing can be both legal and wrong, how can our rights only exist as a function of government?"
Ok, you are baffling me. I see no logical disconnect between those two propositions, unless you are arguing that rights are somehow God-given or derived from natural law, not from constitutions and political systems.
"You're on Earth too, right?"
You fail to recognize a joke about our extremely different perspectives?
"After the statements you made yesterday suggesting passive support for Israel's human rights abuses, I wouldn't continue an argument with you about what degree of torture is appropriate in US policy any more than I would argue with you about whether or not we should reinstitute some form of slavery."
Nice, cheap shot about slavery. Again, I consider you irrational on the issue of Israel, and no doubt you feel the same about me, so let's agree to disagree about that one. But as for torture. Show me where I ever advocated torture as an aspect of U.S. policy. All I've been arguing is that torture is a subjective thing. If you'll recall, we actually agreed on some of the treatment at Gitmo constituting torture. For example, to me, sleep deprivation is torture. But unlike you, I don't think that just because I see that particular technique as torture, that everyone else has to believe that as well. There is no hard and fast definition of torture that everyone everywhere agrees on. If there were, there wouldn't be all this argument about it. I don't see why that concept is so difficult to grasp.
Jack | December 5, 2004, 2:58am | #
David wrote: "Your interpretation (and that of your Con. Law professor) is merely an opinion. I'm sure you are aware that others may differ, and that what exactly is meant or implied by any right is subject to interpretation and debate."
As an attorney, I would be interested to see you identify one serious constitutional scholar who agrees with your proposition that non-citizens within U.S. territory do not enjoy the constitutional rights labeled as belong to "people" or a "person". The U.S. Supreme Court has being holding to the contrary for well over a century. From Johnson v. Eisentrager, 339 U.S. 763, 771 (1950):
"And, at least since 1886, we have extended to the person and property of resident aliens important constitutional guaranties--such as the due process of law of the Fourteenth Amendment. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220."
The Yick Wo case cited above, interpreting the language of the 14th Amendment (which uses the word "person"), explained:
"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"
Yick Wo, 118 U.S. at 369. That was a unanimous decision and I've been unable to find a single case where a dissenter even suggested that "person" or "people" should be read as being limited to "U.S. citizens".
raymond | December 5, 2004, 3:58am | #
Let's pretend Gonzales is on this board, for a moment.
...nor shall be compelled in any criminal case to be a witness against himself ...
"Ah," he might say. "Yes indeed. But as a strict constructionist I must conclude that the founders, using the words "against himself", specifically do not forbid compelling people to be witnesses against
others.
"And while a forced confession might not be admissible in a criminal trial, it certainly would be in a civil case."
...nor cruel and unusual punishments inflicted.
Here we can offer a two-pronged justification:
1. "Torture used as a 'vigourous law enforcement interrogation technique' does not fall under the VIII Amendment. It's not being used as a punishment but as an information-gathering technique."
2. "If it were being used as punishment, we would maintain that torture is no more 'cruel and unusual' than capital punishment. We stand proud with nations (such as China, Iran, Vietnam, Saudi Arabia...) where capital punishment and torture are every-day events."
No State shall ... deny to any person within its jurisdiction the equal protection of the laws.
A three-pronged justification:
1. "At this time, no detainee is within the jurisdiction of any state."
2. "The Insular Cases."
3. "If a State (say, Texas, which is a world leader in this type of thing) decides to use torture, it must do so on both its brown and its black inhabitants."
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
"Ah. A bit tricky, since the US has signed and ratified the Conventions. However, we have got around that by declaring 'illegal' the combatants we are now holding in Guantanamo. And the Conventions do not apply to internal matters, but only to countries at war. And the US is not, legally, 'at war', since no legal declaration of war has been made.
"Moreover, we have specifically refused to adopt the UN Protocol to Prevent Torture. '... four countries voted against the adoption of this preventive instrument, namely the USA, Nigeria, the Marshall Islands and Palau.'"
You see, Ken. While federal law does, the Constitution itself nowhere forbids the use of torture.
And while well-meaning, the XIV Amendment contains language which throws the principles of the Declaration of Independence out the window (and therefore should be amended, imo).
The amendment states:
nor shall any State deprive any person of life, liberty, or property, without due process of law.
Government is established to secure the unalienable rights, not to deprive people of them.
-------
Let me state first that I have nothing against trying and shooting unlawful combatants.
And let me state that capital punishment is a clear violation of the principles of the Declaration of Independence.
I do find it deeply disturbing that we would lower ourselves to the level of our enemies, even a little bit, by treating them in other than the most correct manner.
Me too. And worse, that you lower yourselves to the level of some of your friends. Saudi Arabia, China, Russia...
We are better than our enemies and should behave as such.
Actually, no, we are not better. We are precisely the same as our enemies. That's why we need a government which adheres to the principles of the Declaration of Independence and promulgates and tries to achieve the goals set out in the Universal Declaration of Human Rights.
---------
...unless you are arguing that rights are somehow God-given or derived from natural law, not from constitutions and political systems.
You see, Fabius? This statement is apparently a rejection of the concept of "fundamental human rights" that we find in the Declaration of Independence. What "David" seems to be saying is that all rights come from governments.
I would maintain (and this is not cheap-shot insult) is that "David's" position is fascist: "Everything is in the State, and nothing human or spiritual exists, much less has value, outside the State."
I don't think that just because I see that particular technique as torture, that everyone else has to believe that as well. There is no hard and fast definition of torture that everyone everywhere agrees on.
There is no "hard and fast definition" of "human being", either. If there were, there'd be no argument about slavery, abortion...
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."
So what we have in "David's" posts is fascist-Humpty-Dumpty theory.
--------
Hypotheticals...
Do you ratchet up the pressure and cross the line into techniques that could be considered torture?
Would there, for you, David, even be a line? Where would you stop? Where would the "higher good" cease to outweigh your distaste (?) for torture? Bamboo under fingernails? Electrodes on genitals? Cutting off of toes and fingers? Flaying?
Or might it not be more effective to do these things to your prisoner's little daughter in front of him?
In your hypothetical, are you telling us (subtly) that "The end justifies the means"?
And if you are, would you agree that people who plant nuclear bombs in cities or saw the heads off other people are simply appyling your own principles? That you and they are of a cloth?
Does making a prisoner believe that he will be tortured if he doesn't cooperate -- even if you won't actually carry through on the threat -- constitute torture in and of itself
Yes.
David | December 5, 2004, 9:18am | #
Jack,
"As an attorney, I would be interested to see you identify one serious constitutional scholar who agrees with your proposition that non-citizens within U.S. territory do not enjoy the constitutional rights labeled as belong to "people" or a "person"."
I would suggest doing a few google searchs and you will find some. I would also suggest that the government can marshal its own lawyers to refute on constitutional grounds, sweeping arguments that extensive U.S. constitutional rights apply to hostile non-citizens. I don't need to do it for them. Sorry, I don't accept your argument that maintains that your broad view for who gets constitutional rights is the only valid one.
Raymond,
"This statement is apparently a rejection of the concept of "fundamental human rights" that we find in the Declaration of Independence. What "David" seems to be saying is that all rights come from governments.
I would maintain (and this is not cheap-shot insult) is that "David's" position is fascist: "Everything is in the State, and nothing human or spiritual exists, much less has value, outside the State."
Ok, i'll try again. What we have here is a fundamental disconnect between THEORY and REALITY. According to various political theories, including those on which the U.S. constitution is based, human beings have certain rights. The Declaration of Independence declares that the rights to life, liberty & the pursuit of happiness are "self-evident." This statement is and was a political theory advanced by those who wrote it. It was and is NOT an objective fact. If these rights were in any actual way "self-evident," explain the existance of slavery and autocracy worldwide when the Declaration was written. Those rights are self-evident only to those expressing them.
The reason we enjoy such rights in the United States is precisely because our constitution and system of government recognizes them. That's reality. In my view, arguing that rights have nothing to do with government is the realm of pure theory, and utterly meaningless in the real world, except as a rallying cry to make political changes. In reality you cannot exercise any rights unless you live under a system of government that recognizes and protects them. If you doubt this, try living in an autocratic state and see how far your theoretical concepts of rights take you.
If you think I'm a fascist because I disagree with your utopian view of human rights, then I submit that you don't have the slightest idea what a fascist is. Because I disagree that rights are inherent, self-evident, God-given, derived from natural law, or have any sort of actual mystical existance apart from political systems, does not mean I oppose those rights or believe they shouldn't be extended to people.
"Would there, for you, David, even be a line? Where would you stop? Where would the "higher good" cease to outweigh your distaste (?) for torture? Bamboo under fingernails? Electrodes on genitals? Cutting off of toes and fingers? Flaying?"
This is a slippery slope argument. As such it is a reasonable argument about the dangers of not having a hard & fast line on how prisoners are treated. But it doesn't answer my question. Do you maintain that there are no situations whatsoever in which torture could ever be justified?
Unlike you, I will answer your question. Would there be a line for me? Yes, but it would depend on the situation. I think torture is not only barbaric but dehumanizing to those who employ it, and therefore it should not be our policy to use it on prisoners. However, I can envision certain extraordinary situations in which I would set principle aside and use it anyway. Yes this makes me at least to some extent a moral relativist, and yes, I do believe that in SOME cases, the ends do justify the means.
"And if you are, would you agree that people who plant nuclear bombs in cities or saw the heads off other people are simply appyling your own principles? That you and they are of a cloth?"
No, I would not agree. This is simplistic moral equivalence, and to me, fundamentally illogical. To believe that you have to believe that the killing of a enemy in arms against you is morally equivalent to the killing of an innocent, simply because they both involve killing.
raymond | December 5, 2004, 3:07pm | #
You're going to have to spell it out for me.
In your opinion, do we have our fundamental rights
because of the State ("constitution and political system")? Does the State give them to us? Did you mean this-->
You don't understand that we have the rights that we do because of our consitution and political system? (David at December 4, 2004 01:32 PM)
Or do we have rights regardless of the State in which we live? Do you mean _this_-->
The reason we enjoy such rights... you cannot exercise any rights unless you live under a system of government that recognizes and protects them. (David at December 5, 2004 09:18 AM)
Is the role of government to secure the rights we have as human beings? If it is, where do those rights reside?
Or let me put it another way. If an American leaves the USA, do his fundamental rights cease? (There are people who believe they do. I'm just curious.)
In my view, arguing that rights have nothing to do with government is the realm of pure theory...
Who argued that? "Have nothing to do with." Why, securing rights is why we set up governments.
If you think I'm a fascist because I disagree with your utopian view of human rights...
1. I never said you were a fascist. (I'm very careful with that ad-hominem stuff.)
2. Lots and lots of people disagree with me. One is not fascist for that.
3. "Utopian". Would I be correct, then, in thinking that you reject the concept of "fundamental human rights" that we find in the Declaration of Independence?
4. Do you - as you seem to indicate in several places - agree with this statement: "The State ... is the creator of right"? Do you hold that "Everything is in the State, and nothing human or spiritual exists, much less has value, outside the State"? Just curious.
Would there be a line for me? Yes, but it would depend on the situation.
In other words, there is no line for you.
I do believe that in SOME cases, the ends do justify the means.
And who would determine those cases? You?
Am I in any personal danger from you? Just curious.
Do you maintain that there are no situations whatsoever in which torture could ever be justified?
Yes.
David | December 6, 2004, 8:56am | #
Raymond,
"In your opinion, do we have our fundamental rights because of the State ("constitution and political system")? Does the State give them to us? Did you mean this-->"
Yes and no. Rights without the ability to exercise them are meaningless. Rights without a state system based on them do not exist except as concepts of political theory. Again, I am arguing practical vs. theoretical. This does not mean that I think the concept of fundamental human rights is bad, or should not be the basis for government. What it means is that in my view, if you don't have a state that enmuerates and respects your rights, in practical fact you do not have those rights. You can say you have them, believe you do, believe everyone should have them, but in the real world you do not -- unless you live under a system that recognizes them. I would not say the state "gives them to us." Rather, I would say the the creation of our particular type of state allows us in practice to have the rights we now have. Saying that the state give us rights now, implies that the state can just take them away. But as our rights are enshrined as part of the state itself, taking them away would fundamentally alter or destroy the state.
"Is the role of government to secure the rights we have as human beings? If it is, where do those rights reside?"
It would be nice if it were, but that isn't the case. That was my point when I used the term "utopian." How many governments out there, in actual fact, see this as their role? How many citzens of various countries would agree that this is the role of their particular government?
"Or let me put it another way. If an American leaves the USA, do his fundamental rights cease? (There are people who believe they do. I'm just curious.)"
That depends on a couple of factors. Does the country he is now residing in or visiting respect those rights? Can the power of the U.S. enforce respect for those rights? If the answer to either question is no, then those rights return to the realm of theory and cannot be exercised. If you doubt this, travel to Iran and attempt to give a public speech in that country detailing the evils of militant Islam and rule by mullahs. Then decide whether or not you retain the right to free speech.
" I never said you were a fascist. (I'm very careful with that ad-hominem stuff.)
2. Lots and lots of people disagree with me. One is not fascist for that."
Sorry to overreact on that. I do understand your point that my reasoning could be used to justify fascism. But I don't believe that it is, in and of itself, a fascist argument. I can believe that best type of government is one based on political theories that advocate fundamental human rights, even while disbelieving that those rights have any sort of inherent existance.
" "Utopian". Would I be correct, then, in thinking that you reject the concept of "fundamental human rights" that we find in the Declaration of Independence?"
Not exactly. I know it may sound like I'm splitting hairs here, but to me this is an important point. I don't reject the idea of fundamental human rights as a "concept." But the concept has no practical meaning without a political system that enshrines it and puts it into operation.
" Do you - as you seem to indicate in several places - agree with this statement: "The State ... is the creator of right"? Do you hold that "Everything is in the State, and nothing human or spiritual exists, much less has value, outside the State"? Just curious"
No, I would definitely not agree with those statements. I am not an absolutist in any sense of the word -- very rarely do I view things in stark black and white terms. And I'm not a complete materialist. Religiously speaking I'm a skeptic/agnostic, not an atheist.
"In other words, there is no line for you"
One single inviolate line? No. And I don't think there is for most people either.
"And who would determine those cases? You?
Am I in any personal danger from you? Just curious."
If the situation affected me then yes, of course I would have to determine how far I'd be willing to go. Why would you be in danger from me? As far as I am aware, all we are doing is having an interesting discussion.
"Do you maintain that there are no situations whatsoever in which torture could ever be justified?
Yes."
Really? I know this is unfair but since you take an absolute moral position here, let's take my hypothetical kidnap scenario a step farther. Now it's your child that's been kidnapped, missing and left to die, and it's you that has captured the kidnapper. You still feel that torture is beyond the pale even to save your own child's life?
Ken,
"Is it necessary to explain why the Constitution and the principles of the Declaration of Independence are important? Once someone equates fundamental fairness with the existence of Santa Claus, why go any further?"
Is it necessary to explain that what I've been arguing is exactly why the constitution of the United States is so important? You seem utterly unable to grasp exactly what it is that I've been saying all along -- ie that rights in the absence of political systems that respect them are mere concepts of theory. And yes, if you believe in fundamental fairness in life, then in my opinion you live in a fantasy world.
David | December 6, 2004, 2:22pm | #
raymond,
"If this little old lady could be detained, why couldn't I be?"
Apparently you could be if you unknowingly gave to an Al Qaeda front.
"If any "enemy combatant" could be tortured, why couldn't I be?"
Because you are not an "enemy combatant"? Arguing that you could be labeled as such is irrelevant, since you could wrongly be labeled as any type of criminal and therefore be wrongly imprisoned.
"If innocent people can be condemned to death, why couldn't I be?"
Of course you could be. Innocent people have been condemned to death before and will continue to be. But again, why is that relevant?
"You'd better believe I'm starkly dogmatic, almost pious, when it comes to my fundamental human rights."
This brings me to a question that I forgot to ask I my last post. Since you disagree that rights are a function of political systems, where exactly do your fundamental human rights come from? (And Ken Shultz, feel free to weigh in here also, since you appear to have similiar beliefs.)
Along the lines of what Kenneth Jeordi said, at times here I've felt similarities to instances when I've attempted to argue with someone who believes The Bible is the divinely-inspired, infallible word of God.
I say, I don't believe X.
He says, you're wrong, because God says X. It's in The Bible.
I say, but I don't accept The Bible as the word of God. X makes no sense logically so therefore I don't believe it.
He says, you're wrong. Read The Bible and you'll see that I'm right about X.
David | December 6, 2004, 7:01pm | #
raymond,
"That's why we make governments. To keep people from hurting me with their movable lines."
I agree
"Because I consider the right to Life to be one of the fundamental unalienable human rights. It's sort of basic to the discussion."
And I maintain that it is not an inalienable right in practice, unless you live under political system that recognizes it. And even then it is not inalienable if the government determines that you have given it up by your actions. For example, if you are convicted of murder and receive the death penalty. Incidentally, I consider an argument that the Declaration makes the death penalty unconstitutional because of the right to life illogical. If so, shouldn't imprisonment be equally unconstitutional because of the right to liberty?
"n your earlier posts (before you changed your wording), you seemed to indicate that you hold that the State grants fundamental rights. (You don't understand that we have the rights that we do because of our consitution and political system? ... Hostile foreigners get whatever rights we decide to grant them.). If this is true, then men belong to the State. I disagree with that position, of course."
I don't think men belong to the State. And I don't think that conclusion necessarily follows from my reasoning.
"I'll let you read my site. I don't feel like cutting and pasting.
btw. We're talking about two different kinds of "rights". (I believe I've pointed this out already. Perhaps on a different thread.) I'm talking about fundamental individual rights (Live, Liberty, Property), and you're talking about the right to turn right on red."
I take it from your site that your concept of rights is based on natural law? Or am I reading it incorrectly? Since I don't believe in natural law, it is no wonder we are in disagreement about what rights are. And I'm talking about the same rights that you are, I just disagree with you about where they are derived from and who gets them.
Kenneth Jordi | December 7, 2004, 4:05am | #
Fact is that nobody actually knows what kind of U.S. constitutional rights the detainees at Guantanamo have, or, to the extent that there may be other sources of rights for them (such as the Geneva Convention), whether those rights are binding in federal court. What we know, from Rasul v. Bush, is that the federal courts have jurisdiction to consider the question, but we just don't know what the answer is, because there are rather few opinions on the constitutional rights of non-citizen detainees outside the United States as a general matter, and those opinions that shed any light at all on the issue here, for instance United States v. Verdugo-Urquidez, Reid v. Covert, and Johnson v. Eisentrager, are generally too splintered, factually different, and in some cases too dated to tell us very much. No one really can know how the federal courts and the Supreme Court are going to answer these questions.
Faced with that uncertainty, the Bush Administration has taken the quite reasonable position that they're not inclined to say that a detainee has a particular right unless a court affirmatively rules that this is so. That's nothing more than a lawyerly tactic, as conventional as they come, under the circumstances.
Mr. Boyle's comments follow from that position. Apparently, the Guantanamo detainees in the case before Judge Leon have alleged that they have a constitutional right to be released because the evidence needed to justify detaining them was obtained by torture. Boyle responded with the minimalist position that as a matter of law, the detainees do not have the constitutional rights needed to trigger the remedy of release because the constitutional minimum was reliability of the evidence, not the specific procedures that were used to obtain the evidence.
The point, obviously, is not that the U.S. government is trying to persuade people that torture by the military is okay or what is or isn't torture. Rather, the point is that the Administration is taking a controversial litigation position about constitutional law and waiting for the courts to tell them that they're wrong (or not).
