Second amendment & Gitmo
The recent decision by the DC Court of Appeals says on page 19:
Germany filed habeas corpus petitions. Although the German prisoners alleged they were civilian agents of the German government, a military commission convicted them of war crimes arising from military activity against the United States in China after Germany’s surrender. They claimed their convictions and imprisonment violated various constitutional provisions and the Geneva Conventions. The Supreme Court rejected the proposition “that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses,” 339 U.S. at 783. The Court continued: “If the Fifth Amendment confers its rights on all the world . . . [it] would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and ‘werewolves’ could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against ‘unreasonable’ searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.” Id. at 784. (Shortly before Germany’s surrender, the Nazis began training covert forces called “werewolves” to conduct terrorist activities during the Allied occupation.
February 21st, 2007 at 11:17 am
59 friggin pages of “gallery proofs”.
Is your point that the DC court of Appeals just recognized the proper definition of the second amendment?
If so, I’m pretty sure it was just a passing reference and not binding. Hold off on the church bells and the victory speeches.
February 21st, 2007 at 12:07 pm
February 21st, 2007 at 12:14 pm
The 2A has been mentioned in dicta (meaning it’s the opinion of the court, and often used as precedent, but not necessarily binding) in various federal and SCOTUS decisions as an individual right. Interesting, but not binding…so yeah, we can’t exactly pop the champagne corks yet. There are plenty of decisions where courts have similarly adhered to the nonsensical “collective rights” view.
That view rather necessarily requires that we ask, “how is it that the people are collectively enjoying a right if individuals can’t exercise it?”
February 21st, 2007 at 4:55 pm
Well SM, just as man was created equal, he didn’t long stay that way. And just because you were created with those rights doesn’t mean that they will be protected.
The constitution has never and does not now protect rights of foriegn citizens, on foreign soil during wartime. It just doesn’t.
February 21st, 2007 at 5:58 pm
“It just doesn’t.”
…even when the Constitution states the exact opposite of this belief? And you can throw out the “…during wartime” crap. The executive branch has been using “War Powers” non-stop since before I was born.
But you are right, The Constitution does not protect the rights of foreign citizens. It is only protecting them from a government which realizes all powers are derived from said Constitution. Don’t worry, this government stopped doing that before our founding fathers died. (Hint: how often is this one ignored? “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”)
BTW, you ain’t arguing with me, you are arguing with the Constitution.
February 21st, 2007 at 7:48 pm
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…
The first is dependent upon the second as italic bolded above. Foreign soldiers, terrorists, even civilians are not a part of a “goverment instituted” nor have they consented to that government but have opposed it in support of agendas that do not hold the truths we do to be self-evident that all men are created equal. Their opposition to that premise and their attempts to deny it in polity and reality for others means that they cannot avail themselves of the rights of membership inherent in the “government instituted to secure these rights, deriving their powers from the consent of the governed”
Our founding documents are not suicide notes. There are things we shouldn’t do, there are things that are immoral to do, there are civilities and humanitarian concerns it behooves us to observe when dealing with enemies of foreign origin, but they can claim no right to them under our Constitution. There are strictures we have agreed to and have guaranteed observance of embodied in several conventions we have ratified, most notably the Geneva Convention. We have a duty to observe those strictures as a signatory.
In fact, we have far exceeded in most cases the requirements of the Geneva Convention as regards “irregulars”.
February 21st, 2007 at 10:15 pm
Yes, but in the first line we recognized that all men have unalienable rights. You seem to argue that because they are not citizens, there’s no requirements for our government to recognize their unalienable rights. They do, and as long as they’re in de facto US custody, we need to recognize that. US residents that are not citizens (Guam, US Virgin Islands, etc) have rights that we recognize. Illegal aliens have rights we recognize.
No, and I do understand the type of enemy we’re up against. I’m more that willing to cut our military considerable slack, even with civilian casualties. You simply can not tell who the bad guys are for sure until they start to shoot at you.
Someone else elsewhere argued that German soldiers caught out of uniform during WW2 were lined up against the wall and shot. I don’t have a problem with that. However, if we declined to exercise our right to shoot them on sight, we would then be obligated to treat them as POWs.
This conflict we’re engaged in isn’t against a particular nation, so the POW classification does not fit. But it does not follow that because they are not POWs and because they are not citizens that the executive branch can just create their own magical classification and decide what rights it’s going to recognize for that class. That’s not in line with the nation that I belong to.
On a somewhat related note, go to José Padilla’s Wikipedia page and see the standard mischief the executive branch of our federal government has engaged in to keep this citizen from receiving his fair and speedy trial.
First they hold him as a “material witness”, then they classify him as an “enemy combatant”, they play games with his writ of habeas corpus, requiring that the eyes are dotted and the tees are crossed, they question where his lawyer is the appropriate person to speak for him. The courts order him released within 30 days (why is there a need to even hold him 30 days longer at this point?) but immediately stay their own order because they expect to be overruled. Then, when it seems that they have used all the mischief they know of to stay off a showdown with the supremes, they finally, after over three years, charge him with a crime. Not the chemical attack they accused him of initially, but a generic “conspiracy to murder, kidnap and maim people overseas.” His day in court is scheduled for tomorrow, so that’s an additional 14 months of custody. Some of the charges have been thrown out already.
Charging him with a crime seems to be an attempt to stay off a supreme showdown on the “enemy combatant” issue, but why should that matter? The Roe case went forward to teh supremes, even after she had her baby. It didn’t evaporate because she could no longer get an abortion.
Does that sound like the nation you were taught you belonged to? A government of laws and not men?
February 21st, 2007 at 10:53 pm
But it does not follow that because they are not POWs and because they are not citizens that the executive branch can just create their own magical classification and decide what rights it’s going to recognize for that class. That’s not in line with the nation that I belong to.
You won’t get an argument from me here. It does follow that foreigners while having certain unalienable rights,they do not have some of the rights an American does, at least they don’t enjoy the exercise of those rights in America. For instance,they do not have the right to vote in our elections, nor should they. There are other rights the exercise of which are reserved under our Constitution to our citizens. That does not presuppose that we don’t think they haven’t the same rights all of us are born with, it does presuppose that they can’t use American guarantees reserved for American citizens. If they want to avail themselves of those rights they need to institute such government in their nation or join ours as a full citizen.
I’m with you on the “magic” bulshit. To the surprise of many that have seen me try to hold to the genuine rules in our constitution, I actually oppose the Patriot Act. I did before it passed, I do now. If we surrender all the guarantees and truncate all the liberties and restrict all the rights that are our unalienable rights for some kind of illusion of safety, we have already been destroyed by our enemies. I am much more willing to accept the risks of liberty than the security of totalitarianism.
If they can bend and/or break the rules with impunity and public support for a promised security they can’t even supply with the promise that they will only use this overreach of power for those “other people” it would be in the best interest of all of us to remember that to the powers that be, we are those “other people”.
February 22nd, 2007 at 11:53 am
The constitution protects US citizens and to a lesser extent people inside the United States, whether citizens or not, from the government. Not foreign nationals on foreign soil.
This is just like the NSA Wiretaps. The wiretaps cannot be used to prosecute a US citizen. They can be used to send the military to go kill a foreign national on foreign soil engaged in a war effort. (Remember, the scientists, i.e. civilians, developing the atomic bomb were considered valid military targets even though they never lifted a rifle).
February 22nd, 2007 at 12:25 pm
“Not foreign nationals on foreign soil.” If you’re talking about Gitmo, what law does apply there? It certainly isn’t Cuban law.