Posting Towards Gomorrah

[Spanky]

Originally posted by Tyrone Slothrop
Not necessarily, on your opening question. I think the portion of Fourth Amendment doctrine you're referring to turns not on questions of geography or jurisdiction, but on the notion that you have no reasonable expectation of privacy when you enter the country, because of border checks. When you land at SFO, you are physically in San Mateo County, in the United States and within the jurisdiction of the United States District Court for the Northern District of California, but if you have come from Japan you have less expectation of privacy than if you came from LA.

I think you are wrong here. My memory is vague, but there is an illegal immigrant check between San Diego and Los Angeles on interstate five. They can check any car for illegal aliens. The court upheld that right, as I remember it, because they argued that the stop was part of the border. At this point they agreed you had a reasonable expectation of privary but they said that you have no rights against searches and seizures at the border and this was part of the border. It thought it was a terrible decision because that check point was clearly not part of the border, but it was upheld by the ninth circuit. I am pretty sure it was pretty well accepted that you have no right against unreasonable searches at the border. When you enter the US at the border or anywhere else the courts have conluded you are not yet in the US and under its protections until you have been cleared by immigration and customs. Before you have been cleared by them you are not under the protection of the US constitution. That is why they can give you an anal cavity search if they want. You can not sue the border patrol ever for an unreasonable search at the border because they don't have to be reasonable. Before the US lets you enter, and come under the protection of the constitution, they can search you and do all sorts of stuff. I am pretty sure that is how the legal reasoning works.

Originally posted by Tyrone Slothrop
If you are a Russian citizen and the US government seizes your fishing boat, whether or not you have a right to compensation should not depend on whether you boat was docked in Oakland, in San Francisco Bay, 10 miles off Golden Gate, 190 miles off Golden Gate, or 500 miles off Golden Gate, should it? Or whether you were on the boat at the time, or in Oakland, or in Moscow?

If the US government seizes a russian boat and searches it in international waters I don't think the Russians can take that to our courts claiming it was a violation of their due process rights.

Originally posted by Tyrone Slothrop
OK, but all of that is covered by the law of war, etc. It means that if you brought a claim in a US court, you'd lose in a high-octane New York second. If you are a POW and you bring a habeas claim, you lose, because you're a POW. But if you're just some guy from Japan, and the US government kidnaps you and refuses to release you, why should it matter whether you are in Okinawa or California?

Because you are not under the protection of the US constitution in Okinawa. If the US government seizes your property overseas you need to turn to your own government. We were not at war with Holland yet we seized their property. If the US government takes over a military base, and the local government allows the US government to throw the people off the land without and due process or compensation (this has happend in many countrys), they can't sue for that violation in US courts. This happened in the phillipines, the people sued, and I am pretty sure the US courts said the residents had no standing to sue in US courts. They were no protected by our constitution.

At the beginning of this debate I thought everyone in the debate knew this. And I could be wrong about this. If someone feels up to it they may want to check.

[SlaveNoMore]

Spanky
:td:

:bow2:

I'm beginning to wonder if you and I accidentally did the Vulcan mind meld when we were :beer: at Less' "Welcome Back" :partytime

[taxwonk]

Originally posted by Tyrone Slothrop
I've already told you -- more than once -- that I'm not talking about expanding constitutional rights. The Bush Administration is proposing to restrict habeas. And see my post immediately above about the substantive law governing habeas claims.

I might also point out that Congress has no power to limit the writ as it applies to the United States. Congress can limit the application of the writ as it is applied to decisions of the state courts, because Articles II and III both provide that Congress can define the jurisdiction of the federal courts vis. a vis. the states. With respect to the writ as it applies to actions of the federal executive, it may suspended only in times of rebellion or invasion to secure the public safety.

Consequently, the Bush administration has demonstrated that it is incapable of either (a) reading or (b) respecting the limits of their power under the Constitution.

[Tyrone Slothrop]

Originally posted by Spanky
You know this is a B.S. example because it occurred in the United States. We are talking about foreign policy or defense outside the US. The US can seize property overseas without giving the person due process.

I think perhaps the strands of the conversation are getting confused, but if you look back you will see that I was presenting this example as one of courts constraining Article II powers.

You think there was a quicker and more effective way to bring human rights to the Iraqis?

We've spent a lot of money and wasted a lot of lives making Iraq into a mess. As a practical matter, I don't think that many Iraqis are better off now than they were under Saddam.

Actually our disputes are about the justification for going to war. You look at Afghanistan and think they attacked us, so we can invade them. Iraq didn't attack us so we can't invade them. Or they have weapons of WMDs so we can invade them, but if they didn't we can't. I think we have a right to invade any country that has a totalitarian dictatorship that doesn't respect its people rights. The Declaration of Independence gave people the right to rebel against a government if its government does not respect its human rights. I also think that right expands to any other country to invade and overturn that government. If a totalitarian regime took over our country and the government started committing genocide I would welcome the invasion of a foreign power to reinstate a democratic government here.

You're speaking a language of rights here, but I think there are circumstances where even if we have this "right" to do something, we ought not do it because it will not work well. Iraq would be an example. Intervening in Darfur might be another, though I'm not sure.

The Bush administration went to war against the Taliban because it supported Al Queda. I don't think the Taliban was much of a threat any more. I supported the invasion because we got rid of a very evil government and have a chance to put in a Democratic one. Even if that attempt fails it was worth risk.

I don't think we disagree on Afghanistan. Even Barbara Lee voted to spend money to invade, right?

The Bush administration had many reason for invading Iraq (fear of WMDs, threat to oil supply etc), I did not think those reasons were justifications for invading. However, I thought the invasion was purely justified in the fact that it got rid of a nasty regime. Even if the experiment in Democracy failed, just the chance it would work out was worth the effort.

The administration had many goals, but the only goal I cared about was to try and give Democracy a chance in these nations. Because a permanent democratic nation is invaluable.

The only time I think an invasion would not be justified, is if a democratic government that respected peoples right with in its borders but was attacking the US or working against our interests. I would support attacks on such a nation for our protection but I would not support an invasion of such a nation.

Let's table this particular argument -- it's a little late to be shifting gears from the other discussion to this one. Suffice it to say that we both agree that a peaceful, democratic Iraq would be a good thing, but have had different views about whether and how we can get there.

[SlaveNoMore]

Spanky
... Slave was blabbing on and on ....

Lies, lies all lies.

[Tyrone Slothrop]

Originally posted by Spanky
I think you are wrong here. My memory is vague, but there is an illegal immigrant check between San Diego and Los Angeles on interstate five. They can check any car for illegal aliens. The court upheld that right, as I remember it, because they argued that the stop was part of the border. At this point they agreed you had a reasonable expectation of privary but they said that you have no rights against searches and seizures at the border and this was part of the border. It thought it was a terrible decision because that check point was clearly not part of the border, but it was upheld by the ninth circuit. I am pretty sure it was pretty well accepted that you have no right against unreasonable searches at the border. When you enter the US at the border or anywhere else the courts have conluded you are not yet in the US and under its protections until you have been cleared by immigration and customs. Before you have been cleared by them you are not under the protection of the US constitution. That is why they can give you an anal cavity search if they want. You can not sue the border patrol ever for an unreasonable search at the border because they don't have to be reasonable. Before the US lets you enter, and come under the protection of the constitution, they can search you and do all sorts of stuff. I am pretty sure that is how the legal reasoning works.

This is entirely consistent with what I was saying. The border exception to the Fourth Amendment (not it's name -- a shorthand) has to do with the function of entering the country, not a formalistic, physical notion of where the border is.

To put it differently -- are you aware of any other constitutional doctrine where that sort of border notion applies?

If the US government seizes a russian boat and searches it in international waters I don't think the Russians can take that to our courts claiming it was a violation of their due process rights.

Why can't they take it to court claiming it was a violation of our Fifth Amendment? And if they can't, what's the key -- where the boats are, or where the owners are?

Because you are not under the protection of the US constitution in Okinawa. If the US government seizes your property overseas you need to turn to your own government. We were not at war with Holland yet we seized their property. If the US government takes over a military base, and the local government allows the US government to throw the people off the land without and due process or compensation (this has happend in many countrys), they can't sue for that violation in US courts. This happened in the phillipines, the people sued, and I am pretty sure the US courts said the residents had no standing to sue in US courts. They were no protected by our constitution.

What you're saying it tautological. What's the principle? Our government exists within the framework of the Constitution. Why should the Constitution cease to apply when government actors do things outside our borders?

[taxwonk]

Originally posted by SlaveNoMore
But guilt or innocence aside, they are being charged as war combatants. Tyrone has repeatedly claimed that these folks are not at issue.

Actually, one of the big objections they have is that they are not "being charged." If there were charges, they could be answered and tried. Instead, they are simply being held without any lawful basis.

The US should charge those it can build a case against and release those it can't.

[Spanky]

On this point, when I was working for a law firm in Tokyo, I did some work trying to help Japanes executives get working permits and visas to the United States. I remember they treated me like dirt at the US embassy and there was nothing I could do about it. They could turn down my applications at any time and didn't have to give any reason. I had no recourse.

When I was living in Japan, I threw a lot of partys, and at these partys the Japanese attendees would always bring me expensive bottles of alcohol as gifts. At the end of each party I would end up with much more alcohol than I started with. In addition, I always put away the expesive stuff and served well drinks. As you can imagine, by the time I left Japan I had one hell of a collection.

When I transported the bar to the United States it was seized by US customs. There was so much of it and it was so valuable that they concluded I must be intending to sell it. In addition, some of the items in the collection were banned in the US etc. I never got any of it back. :brick:

The upshot of my experience was that Immigration and Customs officials are Gods until you clear them. Until you get past them you have no rights.

[Spanky]

Originally posted by Tyrone Slothrop

Why can't they take it to court claiming it was a violation of our Fifth Amendment? And if they can't, what's the key -- where the boats are, or where the owners are?

I am pretty sure a Russian in international waters has no fifth amendment protections.

Originally posted by Tyrone Slothrop
What you're saying it tautological. What's the principle? Our government exists within the framework of the Constitution. Why should the Constitution cease to apply when government actors do things outside our borders?

Because it is out of the jurisdiction. Our laws only apply in the US and our rights only apply in the US. The US government can give evidence to be used in foreign prosecutions that is not allowable in the United States. If a gun is illegally seized by US authorities and can't be used as evidence in the US, the US government can still turn it over to other authorities to use in their prosecutions.

Another example of this is the United States and some other ridiculous country like Botswana are the only two nations that tax their citizens and their residents even if they don't live in the US. If you are a British national, you don't have to pay British income tax if you live in Japan. However, when I lived in Japan, Britain, France etc. I had to pay US income tax. I was at a meeting at the US embassy in Tokyo were all the new expats were bitching about this.

Everyone asked "what if I don't pay". They answered, first you would be stripped of your citizenship. Then the embassy official also listed all the other things the government could do, like strip you off all your possesions when you try and reentered the US. Seize your assets in the US etc. They could do all this because you had no rights under the US constitution while you were overseas. The only way to fight these actions would be to return to the US and fight it. You could not just send a lawyer to represent you and stay in the foreign country, because as long as you were not in the jurisdiction of the US, you could not avail yourself of your rights an the IRS could run amock. You had to physically be in the US for your lawyer to be able to fight what the IRS was doing to you.

In addition, if you did your tax return and the IRS decided you owed more money there was nothing you could do about it unless you returned to the US. They didn't have to give you a hearing at the US embassy or anything. The only way to contest it is if you physically went to the US to contest it.

[Spanky]

Originally posted by Tyrone Slothrop

I don't think we disagree on Afghanistan. Even Barbara Lee voted to spend money to invade, right?

The point I was trying to make is I think I disagree with almost everyone on Afghanistan and Iraq. Barbara Lee voted to spend money to invade because of 9-11. But I think we had a right to go in before 9-11. Even if we were sure that Saddam Hussein could never build a WMD weapon again and was no threat to the United States I still think we had a right to invade.

The Bush administration invaded Iraq for many reasons and felt it necessary to explain why we had the right to invade.

But I think that the US has the right to invade any country that has a totalitarian regime and that it is to that countrys benefit for us to invade. The only question is whether or not the invasion is in our interest. But invading a country to overturn a totalitarian regime is never immoral nor should it be considered illegal. The only countrys that have a right not to be invaded are ones that are democratic and respect human rights. I don't care if their governments are recognized as legitimate or not.

I don't think anyone on this board would agree with what I just said, and I know almost no one in the Bush administration would agree with it. I may not totally concur with the reasons the Bush administration gave for invading, but I agree that the invasion was a good thing.

[taxwonk]

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?

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.

[taxwonk]

Originally posted by SlaveNoMore
Lies, lies all lies.

No worries. I just assumed you were drunk and showing off for your smart and lovely SO.

[Spanky]

Originally posted by taxwonk
No worries. I just assumed you were drunk and showing off for your smart and lovely SO.

Actually he was sober at the time. But about three hours after that time he didn't even know is own name. And from what I understand, he really paid for it the next day.

[Tyrone Slothrop]

Originally posted by Spanky
Our laws only apply in the US and our rights only apply in the US.

Not true. There is a canon of statutory interpretation that Congress does not intend laws to apply outside the United States unless it says so clearly, but it's a rebuttable presumption. E.g., United States v. Villanueva, (5th Cir., Apr. 27, 2005).

Our government exists by virtue of the Constitution. If the Constitution stops at our borders, so does the government's authority.

[SlaveNoMore]