Posting Towards Gomorrah

[Spanky]

Originally posted by Tyrone Slothrop
I go off-line when I don't want to talk about substantive law that will out me. So I'll keep it more general. The First Amendment, I think you will find, applies to aliens and non-aliens alike. Only citizens get to vote, and to hold some sorts of government jobs (police officer?). All aliens get some sorts of due process protections, even in immigration proceedings relating to their attempted entry into the country. Aliens have a right to due process -- e.g., adequate notice -- in immigration proceedings. The Equal Protection Clause allows the federal government to distinguish between legal permanent residents and more transient aliens in giving government benefits. The Equal Protection Clause forbids states from discriminating between citizens and non-citizens in many types of hiring decisions and in giving government benefits.

And so on.

Of course legal alien residents in this country have rights. I am talking about Russians in Russia. Or Russians in Afghanistan. What rights do they have under our Consitution? Are you really saying that a Chinese citizen in Japan, if they are mistreated by the US embassy in Japan when applying for a visa, they have a constitutional right to have a hearing?

[SlaveNoMore]

Tyrone Slothrop
I was kinda suspecting that conservatives think that the principles upon which this nation was founded are irrelevant to the way that we choose to treat foreigners, but I am happy to have you put it so bluntly.

It's irrelevant to the discussion at hand, because, we have the written law. Fortunately, we also live in a democratic society that treats life with sanctity and morality.

As Spanky said earlier, our Constitution was not meant to solve all the world's ills.

I'm still waiting for you to openly declare what the hell you're worried about - other than irrational concerns of things that go bump in the night.

[Hank Chinaski]

Originally posted by Spanky
If I ever became president, I would put you, Hank, Slave, Ty, Sidd and Taxwonk all on the Supreme court (obviously I would have my operatives rubb out a few justices). How much fun would that be. It would be my gift to future law students so they wouldn't have to read that dull tripe the current Supreme Court calls opinions and dissents.

the first time Ty calls an argument Orwellian I'm dissenting just for the fun of it.

[Spanky]

Originally posted by Tyrone Slothrop
We hold these truths to be self-evident: That all men are created equal.

Not American citizens. All men. You don't have rights because your country gave them to you.

I agree. But this document does not require the US government to respect these rights. It just says that we can rebel against the British government because it doesn't respect our rights.

Originally posted by Tyrone Slothrop
Moreover, your notion that the executive has always had "unchecked power when it comes to foreign policy or military matters" -- while consistent with GOP talking points of the last five years -- has never been the accepted view of the Constitution.

This power can be checked by Congress, but when can it be checked by the courts?

Originally posted by Tyrone Slothrop
We have a government of checks and balances. That, too, is one of the most fundamental aspects of our government. We do not trust government, and we give it limited powers, not unchecked authority.

You keep stating the obvious like it has some relevent to this conversatoin. We have a government of checks and balances to help protect our liberty and rights. To to protect that rights and liberties of Pakistanis, Afghans that wage war on the United States.

Originally posted by Tyrone Slothrop
I'm not suggesting that denying foreigners habeas corpus will mean that the rest of us will be living in a totalitarian regime. I'm saying that if you don't think that foreigners deserve basic human rights, then you don't have much business trying to export your view of democracy to the rest of the world, for it is a hollow one.

I can flip that around. If you think it is so important that the US give foreigners rights, then why don't you think it is important for the US to insure other government respect these rights? If these rights are so important why wasn't it important to spread it in Iraq?

Shouldn't your problem with the Bush administration be that it has not invaded enought countries. Shouldn't you support it every time our military takes out another totalitarian regine.

[Spanky]

Originally posted by SlaveNoMore
Constitution = law of the land.

Declaration of Independence = statement of Natural Law principles.

And as irrelevant for this discussion as the Magna Carta.

:td:

[Tyrone Slothrop]

Originally posted by Spanky
Of course legal alien residents in this country have rights. I am talking about Russians in Russia. Or Russian is Afghanistan. What rights do they have under our Consitution? Are you really saying that a Chinese citizen in Japan, if they are mistreated by the US embassy in Japan when applying for a visa, they have a constitutional right to have a hearing?

If you are suggesting that different sets of constitutional principles apply to claims made by people inside the United States and outside the United States simply by virtue of where they are when they make their claim, I don't know why that would be so and I can't think of an example. I am pretty sure that the Due Process Clause applies only to deprivations of life, liberty or property, and so it wouldn't apply to a visa application whether you are inside or outside the country. I can't think of a situation where an alien would have a viable claim if he were inside the country but does not because he is outside the country, though that doesn't mean there isn't one.

What in the Constitution's text or history makes you think that the principles it embodies turn on such matters of geography?

[Tyrone Slothrop]

Originally posted by SlaveNoMore
It's irrelevant to the discussion at hand, because, we have the written law. Fortunately, we also live in a democratic society that treats life with sanctity and morality.

The discussion I'm having is about a proposed change to the written law, apparently to protect government officials from judicial scrutiny when they decide not to treat life with sanctity and morality.

From My Lai to Abu Ghraib, it's clear that our government does not always live up to our aspirations, even if we do better than most.

As Spanky said earlier, our Constitution was not meant to solve all the world's ills.

And I'm not talking about the world's ills. I'm talking about our own government's actions. If our own law doesn't try to solve those problems, whose will?

I'm still waiting for you to openly declare what the hell you're worried about - other than irrational concerns of things that go bump in the night.

I don't think that habeas should be limited. Period. I think it's a terrible, terrible precedent. I question the ability of foreign nationals to bring habeas claims, as a practical matter, so I don't suppose it will make much difference to anyone we're holding, but I care about the principle and the precedent.

[Spanky]

Originally posted by Tyrone Slothrop
If you are suggesting that different sets of constitutional principles apply to claims made by people inside the United States and outside the United States simply by virtue of where they are when they make their claim, I don't know why that would be so and I can't think of an example. I am pretty sure that the Due Process Clause applies only to deprivations of life, liberty or property, and so it wouldn't apply to a visa application whether you are inside or outside the country. I can't think of a situation where an alien would have a viable claim if he were inside the country but does not because he is outside the country, though that doesn't mean there isn't one.

What in the Constitution's text or history makes you think that the principles it embodies turn on such matters of geography?

Does not Jurisdictional boundaries = Geograpahy. The document applies to the territorial boundaries of the US. The perfect example is that you have no rights against unreasonable searches and seizures when you enter the United States. When I live overseas I have no right against unreasonable searches by the US government. They can check my mail etc. I am pretty sure when I was a student in Moscow during the soviet era the US government checked my mail and monitored my phone calls.

A citizen or a legal resident declares war on the United States, in the United States, and are caught, they are entitled to due process. A person outside of the United States, that declares war on the United States, or is part of a military that is fighting the United States = no due process. A US solder can kill them, or capture them and detain them without giving them due process. Some German Americans joined the German army during WWII, and same with Japanes Americans with the Japanese army. When they were captured they had no right to due process, nor should they have.

When the US army seized houses for its headquarters or for its troops in France and Belgian during WWII, the resident did not have a right of Due Process before the executive branch seized their property. They had no of due of due process before the taking of life liberty or property by the US government.

[Tyrone Slothrop]

Originally posted by Spanky
I agree. But this document does not require the US government to respect these rights. It just says that we can rebel against the British government because it doesn't respect our rights.

Like Slave's statement above, this sort of encapsulates your position in a wonderful way.

This power can be checked by Congress, but when can it be checked by the courts?

Certainly there are situations where courts will decline to entertain suits raising political questions (that's the name of a doctrine), but -- to take an extreme example to prove the point -- the President cannot just seize your beach house without compensation on the ground that he needs the beachfront to install coastal artillery.

I can flip that around. If you think it is so important that the US give foreigners rights, then why don't you think it is important for the US to insure other government respect these rights? If these rights are so important why wasn't it important to spread it in Iraq?

I think it is important to spread democracy to places like Iraq. I just didn't think that invading Iraq was a good way to do it. Most of our disputes about foreign policy are disputes about means, not ultimate ends.

Shouldn't your problem with the Bush administration be that it has not invaded enought countries. Shouldn't you support it every time our military takes out another totalitarian regine.

Are you referring to the Sadr-led militias who control Iraq's Interior Ministry and who have been torturing and killing Sunnis?

[Tyrone Slothrop]

Originally posted by Spanky
Does not Jurisdictional boundaries = Geograpahy. The document applies to the territorial boundaries of the US. The perfect example is that you have no rights against unreasonable searches and seizures when you enter the United States. When I live overseas I have no right against unreasonable searches by the US government. They can check my mail etc. I am pretty sure when I was a student in Moscow during the soviet era the US government checked my mail and monitored my phone calls.

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.

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?

A citizen or a legal resident declares war on the United States, in the United States, and are caught, they are entitled to due process. A person outside of the United States, that declares war on the United States, or is part of a military that is fighting the United States = no due process. A US solder can kill them, or capture them and detain them without giving them due process. Some German Americans joined the German army during WWII, and same with Japanes Americans with the Japanese army. When they were captured they had no right to due process, nor should they have.

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?

[taxwonk]

Originally posted by SlaveNoMore
Or release them and let them rejoin the insurgents???

In two days, you've yet to explain why any expansion of current Constitutional rights is necessary.

I would suggest that no expansion of current Constitutional rights is necessary. The Constitution as it is currently written and interpreted affords adequate checks and balances. All we need is an Executive that respects the rule of law.

[Spanky]

Originally posted by Tyrone Slothrop
Certainly there are situations where courts will decline to entertain suits raising political questions (that's the name of a doctrine), but -- to take an extreme example to prove the point -- the President cannot just seize your beach house without compensation on the ground that he needs the beachfront to install coastal artillery.

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.

Originally posted by Tyrone Slothrop
I think it is important to spread democracy to places like Iraq. I just didn't think that invading Iraq was a good way to do it.

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

Originally posted by Tyrone Slothrop
Most of our disputes about foreign policy are disputes about means, not ultimate ends.

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.

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.

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.

[Secret_Agent_Man]

Originally posted by Spanky
Good use of Smilies. I have no problem with congress making sure our military doesn't run amuck. They wanted these things stopped and the laws changed. But did any of them suggest that the prisoners in Iraq be given access to our court system?

I don't think so, but like I said . . I'm not even going to try to jump into the middle of this conversation.

S_A_M

[taxwonk]

Originally posted by SlaveNoMore
And every time you talk about this "innocent" non-enemy combatant, its makes the hypotetical ludicrous.

Is the US Military sweeping through the streets of Casablanca "rounding up the usual suspects" for the theft of some letters of transit?

Arguably, they have in the past, and clearly, President Bush wants the power to do it in the future.

[taxwonk]

Originally posted by Mmmm, Burger (C.J.)
This, speaking more broadly, is a rather cramped view of the constitution. The idea that the bill of rights solely vindicates individual liberties is not right.

For example, the 3d amendment, which prohibits/limits the quartering of soldiers in private houses. Is that solely a protection of private property interests? I don't think so--it's designed to place limits on the military, much as the limits of appropriations for the military are limited to two years.

More strongly, first amendment. It's not just for the protection of an individual to speak freely, but rather for a limit on government regulation.

Why is habeas corpus different? It's a check on unfettered exercises of government power. The check is vindicated through individual applications for the writ. But that doesn't mean it's solely for their benefit.

This may be me being a Timmy, but the limitation on the Executive's power to suspend the writ is not in the Bill of Rights. It's in Article I.