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Originally posted by Spanky
You said:
quote:
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Originally posted by taxwonk
Furthermore, I'm not saying that all hostile combatants are entitled to the full range of protections of the Constitution. What I said was, that the executive branch of the US government cannot avoid its obligation to follow the laws of the US and the Constitution simply by carrying out actions that would be unlawful here on foreign soil.
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The I asked:
Why don't you answer this question? I am really curious to know.
Over dinner the other night (Less's birthday) Slave was blabbing on and on what a smart guy you are and how well you elucidate the liberal position (I would have argued with him but I was stealing mash potatoes off Slave’s plate). His significant other (and I am not sure how he landed her - the only reason I can think a quality dame like that would hang out with him is if he has something on her - or is holding her parents hostage) agreed with that assessment. Less also agreed. You have quite a fan club. Less and Slave are nothing to brag about, but Slave's significant other is.
So assuming your fan club is right, I am interested to know what rights you think these people should have and how much access we shold give them to our court system?
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I didn't answer the question because I think it is the wrong question. The issue of whether or not a foreign national should be able to file a petition for a writ of habeus corpus is not dependent upon that individual having rights granted under the Constitution.
The Constitution also limits the power of each of the branches of the federal government. That is where I feel the issue is framed. To be specific, Art. I, Sec. 9 of the Constitution, which limits the power of Congress, specifically provides that Congress may not suspend the privilege of the writ of habeus corpus except when, in times of rebellion or invasion, the public safety may require it.
Slave draws a distinction between a "right" and a "privilege." I would submit that the distinction is not worth making when the privilege may not be suspended.
While habeus corpus is traditionally used by a prisoner to attack a conviction for a criminal offense, it is also the appropriate relief for persons claiming to be held unlawfully by the executive in other cases of pretrial or prehearing detention. In such cases, the issue is not whether the prisnoer's rights are being violated, but whether or not the governmental agency has legal authority to detain the petitioner without a hearing or other process of law.
I am of the opinion that the ability of the government to hold any person for any significant period of time without having to show a valid and lawful reason for it is of sufficient importance that any person should be able to challenge such a detention.
As for a foreign national's ability to pursue a petition for habeus corpus in the federal courts, Art. III, Sec. 2 grants origianl jurisdiction in the federal courts to all actions in which the US is a party.
All that being said, the AUMF authorizes the detention of all persons identified as belonging to Al Queda and all persons identified as having conspired or committed an act of terrorism or aided and abetted the attempt to inflict harm or injury on the United States or it citizens. A petition for a writ of habeus corpus would do nothing more than require the US to prove it had reasonable cause to believe a detainee had engaged in any of the prohibited acts and the inquiry is at an end.
I don't think it's asking too much of us as a nation of laws to require the US to meet such a minimal burden if it wishes to detain a person for an indeterminate period of time. What's more, as I read the Constitution, neither Congress nor the President has the authority to do otherwise.
