Quote:
Originally posted by sgtclub
I don't really know enough about this area of law, but it is my understanding that this is not a case of first impression. So I'm not sure it is right to say he is undoubtedly entitled to Constitutional protections.
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(a) Under what circumstances is a U.S. citizen, on U.S. soil, not entitled to Constitutional protections as against his government?
(Particularly when we are not, technically, at war with anyone?)
(b) As far as I know, this is pretty much a case of first impression. The "enemy combatant" cases that the administration's defenders kept throwing around early on involved Germans sent ashore from a submarine to spy/sabotage in the U.S. in WWII. I'm not aware of a case with facts that are even particularly close to this.
Quote:
Originally posted by sgtclub
Perhaps you are arguing what the law should be, in which case, I believe there are constituencies on both sides whose rights need to be considered. From what I understand, the big fear of the GOV is that by giving him Constitutional rights, he would have access to communicate with those who mean to do us harm. If true, this is a serious concern to me. On the other side of the coin are, of course, the human rights issues. And on top of all this, we have separation of powers issues.
So given all this, it seems to me that the way to balance these competing issues is to have some sort of judicial review on the enemy combatant question, which I think is exactly what we have.
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I'm not arguing what the law _should_ be -- I just listed what troubled me about how they've handled it.
However, Club -- how can you say that we HAVE judicial review of the "enemy combatant" designation when that is precisely the issue being fought in the courts, and the administration has taken the position that there can and should be NO REVIEW of such designation by the judiciary?
If there is some judicial review, and the designation is upheld -- is it your position that this is just fine? i.e. If you've been properly designated an "enemy combatant" (some kind of "reasonable basis" test, I'd assume) -- the government can hold him forever (or so long as desired), without charges, and with no right to further challenge his status? Shit, we should heve thought this up years ago and used it on Randy Weaver.
Sure, there are plenty of contituencies and issues to consider. There are legitimate national security concerns if the government is exercising its power responsibly.
What would prevent these issues from being handled in an expanded "national security" court system, where proceedings can be held in secret, with judges, attorneys, etc. who have the requisite clearances to hear the evidence? [The hell of it is that these scary secret courts, with the proper procedural protections, would be a vast improvement on what we have now for them.]
If the response is that the evidence won't meet the requisite burden of proof, because intelligence is always squishy, I'd ask whether we really want our government to be able to confine our citizens indefinitely based on vague or unprovable assertions?
Is whatever benefit we might be getting from this "enemy combatant" stuff really worth the cost to our civil liberties and national identity? It is true that the Constitution is not a suicide pact. However, people who would sacrifice liberty for security deserve neither.
S_A_M
