Obama lawyers: Ex-Guantánamo detainees have no rights

[Freddie Stubbs]

Source: Associated Press

WASHINGTON -- The Obama administration argued in court documents filed Friday that four former detainees at the Guantánamo Bay detention camp who have sued over their treatment have no constitutional rights.

The suit was brought by four British men who say they were beaten, shackled in painful stress positions, threatened by dogs and subjected to extreme medical care during their time in the lockup at the U.S. Navy base in southeast Cuba.

They also say they were harassed while practicing their religion, including forced shaving of their beards, banning or interrupting their prayers, denying them prayer mats and copies of the Koran and throwing a copy of the Koran in a toilet.

They contend in their lawsuit that the treatment violated the Religious Freedom Restoration Act, which provides that the ``government shall not substantially burden a person's exercise of religion.''

Read more: http://www.miamiherald.com/news/breaking-news/story/947480.html

[TacticalPeek]

1. Fuck this shit.

:grr:

[TwilightGardener]

2. I fail to see how they're protected under the Religious Freedom Restoration Act--

or have constitutional rights of any kind, not being citizens.

[Politicalboi]

3. I think it's called

The Geneva Convention. This is bullshit. Where is the evidence that these detainees are "terrorist". We have to start over and give these men a trial. And Bush/Cheney should be able to be called to testify. This is Unfucking Believable.

[TwilightGardener]

6. But the Geneva Conventions are a matter of international law, not American constitutional law--

I'm not saying these men's human rights weren't violated, I'm just saying that they may not have standing to sue the Department of Defense/Rumsfeld/Myers in claiming constitutional protection. Apparently the court has found that some detainees in some instances have constitutional rights to some extent, but apparently it's not applicable here.

[The Stranger]

12. Treaties entered into by the U.S. become U.S. law.

Please just stop while you're not ahead.

[TwilightGardener]

16. I'm asking for explanation, I'm not arguing--I'm not a constitutional law expert--

but clearly, we were able to get around the geneva conventions by creating new categories of "combatants", so I don't know how that applies in terms of constitutional protections.

[TacticalPeek]

19. It was a 5-4 explanation which is now the law of the land.

Supreme Court: Guantanamo Detainees Have Rights in Court
In Stinging Defeat for Government, Detainees Have Right to Challenge Detentions
By JAN CRAWFORD GREENBURG and ARIANE de VOGUE

June 12, 2008—

In a stinging defeat for the Bush administration, the Supreme Court ruled today that detainees held at Guantanamo Bay, Cuba, have a constitutional right to challenge their detentions in federal court and that congressional legislation has failed to provide a reasonable substitute for such a hearing.

The ruling invalidates portions of the Military Commissions Act of 2006, which created military tribunals to hear the cases of those held at Guantanamo.

The decision was 5-4, with Justice Anthony Kennedy joining the four liberal justices on the court.

Writing for the majority opinion striking down the Military Commissions Act, Kennedy wrote, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

http://abcnews.go.com/TheLaw/SCOTUS/story?id=5048935

---------------


Obama should not be casting his lot with the Bush criminals, even in extraordinary times.

[geek tragedy]

23. Habeas rights are not the same thing as 5th Amendment rights.

They can challenge their detention in federal courts.

They do not have the right to enter the United States sovereign territory, which is the outmost extent of the 5th Amendment.

[TwilightGardener]

24. Challenging detentions in court is one matter--but do they have standing

to sue the federal government under the Constitution AFTER they're released? That's the issue. Apparently the court decided "no". It may have a lot to do with their classification/status while they were guests of Gitmo, from what I'm reading.

[geek tragedy]

59. That, and an assumption of 5th Amendment rights is the right

to be inside the United States.

Unless someone can look up a case where a non-citizen who has never set foot inside the US has the same rights as citizens.

[Prophet 451]

77. You didn't "get around" it

The US didn't get around the Conventions at all, the US just ignored them. The Conventions are very clear, prisoners are either civilians, criminals or prisoners of war and there is no fourth category. I hope I'm making this sufficiently clear. The Conventions were simply ignored.

[wmbrew0206]

64. Yeah, abut that...

The courts have gone out of their way over the years to state that Treaty mean what the Executive Branch say them mean. The courts give the executive branch a lot of lee way when it comes to interpreting a Treaty.

If the Obama Administration says these detainees have no constitutional rights, then there is a 95% chance the court will not disagree with them.

[crimsonblue]

25. Actually, the Conventions ARE American constitutional law

The US signed and ratified the Geneva Conventions, giving them the same authority as laws passed by Congress. The US may not choose to ignore the Conventions, and is bound by its provisions. Because the suspected terrorist's rights accorded under the Geneva Conventions were infringed, their Constitutional rights have been infringed, and they have standing to sue for a redress of grievances.

[TwilightGardener]

26. Were they found to be covered by the Geneva Conventions?

I didn't know that.

[crimsonblue]

27. unless they are found to be not covered...

they are covered. The presumption is that one is covered by the Geneva Conventions. Also, legal precedence shows that these men have Geneva rights. It is the burden of the State to prove that these men are not to be afforded Geneva rights. Also, the political ramifications of this would be enormous, were the men to be denied rights. If that happens, then the rights Americans enjoy in foreign countries could cease to exist, and Americans could be summarily detained as retribution. It is in America's best interests to rule that these men have Geneva rights.

[TwilightGardener]

29. Where is that ruling? Is that YOUR interpretation, or was there in fact

a court ruling, that terror suspects held at Gitmo or other locations by the US were deemed to be actual prisoners of war? Because I thought the whole point of the torture controversy and of not being able to challenge their detentions (until recently) was because they did not fit into a classification deemed protected by Geneva Conventions. And here's another question--even if found to be covered by Geneva Conventions, do they NOW have standing to sue the federal government (or specific members thereof) for having their religious rights violated, since they are not citizens and were not considered to be on US soil during their detention?

[crimsonblue]

30. Well, the government can always opress one's rights..

that is why you have the Courts. The Judicial System takes a long time, and that is why people are allowed to be denied their rights and illegally detained for years. Also, no ruling is needed to determine that these men have Geneva rights. Natural rights are not for the government to determine, but are inherent and inalienable in all men, even terrorists. I want EVERY person accused of terrorism to be tried lawfully and within the scope of our Constitution. It is a profound miscarriage of justice for anybody to claim the the right of Habeus Corpus is not universal. Every man, irregardless of nationality, race, status, or crime, has the right to know the reason and justification for their detention. If no valid justification is found, then these men have committed NO crime, and MUST be released. Yeah, a small percentage may have actually done something, but it wasn't provable. It is better to allow 10 terrorists to go free than allow one innocent man to spend the rest of his life rotting in a jail cell.

[TwilightGardener]

35. I think we're dealing with two legal issues here: Are these men

covered (even retroactively, since we're post-detention) by the Geneva Conventions, and do those protections allow for civil lawsuits against the US government after the fact of their detention? I'm not talking about WHAT SHOULD BE, mind you--I'm just saying that perhaps those blaming the Obama administration or its appointees are not being fair--maybe the courts have no choice under the law as is currently written to find as they did in denying the right to sue in this case (the appeals court ruling), or maybe they have reasons for not wanting to create a legal precedent that ends up being harmful to US interests in some way.

[crimsonblue]

36. the Conventions trump regular law...

so the argument that the law may impede the Courts doesn't hold much water. Remember that SCOTUS shot down the first attempt by Congress to set up a series of military tribunals. It's only a matter of time before it shuts down the latest iteration. I think it is only 1 issue we are dealing with: do these men have rights accorded by the Geneva Conventions? If yes, they have the right to sue to enforce their rights; if no, then what they say is meaningless and they have no standing to sue. Regardless, the right of Habeus Corpus remains and is universal; these men have the right to at least know the justification as to their detention.

[No Elephants]

39. The Conventions are part of American law, but the Constitution trumps

treaties. http://www.lexrex.com/enlightened/AmericanIdeal/aspects/limited_gov_treaty.htm

[crimsonblue]

41. what i meant was....

if Congress passed a law saying the Geneva Conventions do not apply to POWs, upon challenge in Court, the law, and not the Geneva Conventions would be stricken. Also, I'm not sure if there has ever been a SCOTUS challenge of whether a Treaty can be deemed Unconstitutional. Since a Treaty carries the full force of the law, but was not created by Congress, but rather ratified, I'm not sure how SCOTUS would (or has) ruled on the matter.

[No Elephants]

48. If a treaty violates the Constitution, the treaty would be stricken. As between a law of Congress

and a treaty, do you have a link to anything that support your assertion? This says otherwise.

http://books.google.com/books?id=ajwrAAAAYAAJ&pg=PA26&lpg=PA26&dq=conflict+between+federal+United+States+statute+law+and+treaty&source=bl&ots=3HafKO2KHh&sig=7ZZ2ZXayeIjL_zqos3U51Ddp-aY&hl=en&ei=Mc66SYmgDY-EtgfA1ZjiDw&sa=X&oi=book_result&resnum=2&ct=result

[TwilightGardener]

40. I agree about habeas corpus. Where I think this case falls apart

is the classification of these guys while they were held, and whether or not the US was legally obligated to protect their religious freedoms under that particular classification, at that time, at that place--those issues need to be clarified first.

[crimsonblue]

42. the classification is irrelevant.

natural rights exist whether or not somebody chooses to recognize them. This is the truth of the matter, but obviously not the law of the matter. SCOTUS has routinely refused to recognize the natural rights of all men in favor of the pretty little laws Congress makes.

[TwilightGardener]

46. Well, it matters to the Justice Dept--they're arguing that

these men's rights and protections were not clearly defined at the time of their detention--that had to do with their being held as "unlawful combatants". Again, we're not arguing about what should be, we're arguing about US law as it stands today. Such classifications are certainly relevant in those terms.

[No Elephants]

49. You have a certain belief about "natural rights." That does not make the existence of

natural rights the truth of the matter. It only makes it your position on the matter.

It's not necessarily that I disagree. It's that I feel it important for people to distinguish between their opinions and THE truth.

[Prophet 451]

78. Two things

1) The burden of proof is always on the party making the claim that these people are not covered. That's standard legal practice.

2) They ARE covered because EVERYONE is covered. The Conventions are utterly explicit about this, it is not possible to take a prisoner without them being covered by the Conventions.

[christx30]

97. There is only one problem I see

with declaring them as prisoners of war, versus calling them enemy combatants...
I may be wrong here, but a POW can be held without trial until the end of the war? Correct me if I am wrong here, but wouldn't declaring them POW mean that we can hold them without trial and charge pretty much until some president declares that the war against terror is over? During the second world war, the US held thousands of Axis prisoners. And, though the Conventions were in place, we did not charge or try any or all of the prisoners we had. To do so during wartime would be impractical.
I do believe that they should get some kind of classification and definitively trials, but calling them POWS might be bad for them.
eoc

[No Elephants]

38. No, treaties are not

American Constitutional Law. Only the Constitution itself fits that description. They are, however, part of American law (subordinate to the Constitution, though). http://www.lexrex.com/enlightened/AmericanIdeal/aspects/limited_gov_treaty.htm

[goforit]

7. True. and If Obama protects Bush/Cheney, He too can be tried as an accomplice.

Obama came to the fork of the road and chose the direction,
Now he will have to face the Justice of the world.

HE WILL BE LIABLE!!!!

[TacticalPeek]

4. "the U.S. Supreme Court ruled that Guantánamo detainees have some rights under the Constitution"

From the linked article:

"Later in 2008, the U.S. Supreme Court ruled that Guantánamo detainees have some rights under the Constitution. So the Supreme Court instructed the appeals court to reconsider the lawsuit in light of their decision."


Right, that pinko Supreme Court.

The Constitution does not limit its protections to citizens, and the RFRA nowhere contains the word 'citizen'.
http://www.welcomehome.org/rainbow/nfs-regs/rfra-act.html

[goforit]

9. I think This action is going to destroy Obama politically.

[truebrit71]

13. It will with me if he keeps it up...this, plus non-tax paying cabinet picks, environment pick...

...signing statements, being coy about prosectuing * and his military junta...

It's early days I know, but I am starting to see a trend I do not like...

[Freddie Stubbs]

20. His fortunes will rise and fall with the economy

This is not the most important issue with most voters.

[Raston]

11. This is really very plain.

http://usmilitary.about.com/od/deploymentsconflicts/l/blgenevaconv.htm

article 17

No physical or mental torture, nor any other form of coercion,
may be inflicted on prisoners of war to secure from them
information of any kind whatever. Prisoners of war who refuse
to answer may not be threatened, insulted, or exposed to any
unpleasant or disadvantageous treatment of any kind. 

Article 18

All effects and articles of personal use, except arms, horses,
military equipment and military documents shall remain in the
possession of prisoners of war, likewise their metal helmets
and gas masks and like articles issued for personal
protection. Effects and articles used for their clothing or
feeding shall likewise remain in their possession, even if
such effects and articles belong to their regulation military
equipment. 
--
These are articles of the Geneva Conventions that we signed. 
Further, these are British citizens, not prisoners of war with
no nationality (thus dubbed 'enemy combatant' by the previous
US dictator.  That they do not receive US Citizen privileges
is no surprise, but they are expected to be treated as human
beings and the Brits should be standing up for their own.

[TwilightGardener]

15. They were not held as prisoners of war, to my knowledge--they

were not members of the British military, acting under orders of the British military. That's the sticky part.

[Prophet 451]

79. What they were called is irrelevant

A big part of teh reason the Conventions were drawn up in the first place was to avoid the claim that X person was not a prisoner of war because we choose not to call them such. The Administration can call them PoWs, enemy combatants or Bob for all it matters, they are still Prisoners of War.

[acmavm]

5. Asserting Constitutional rights was not the way to go. U.S.Code Title 18

U.S.Code Title 18 § 2441.

§ 2441. War crimes
(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(b) Circumstances.— The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).
(c) Definition.— As used in this section the term “war crime” means any conduct—
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.
(d) Common Article 3 Violations.—
(1) Prohibited conduct.— In subsection (c)(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
(A) Torture.— The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
(B) Cruel or inhuman treatment.— The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.
(C) Performing biological experiments.— The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.
(D) Murder.— The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.
(E) Mutilation or maiming.— The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose.
(F) Intentionally causing serious bodily injury.— The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.
(G) Rape.— The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.
(H) Sexual assault or abuse.— The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact.
(I) Taking hostages.— The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons.
(2) Definitions.— In the case of an offense under subsection (a) by reason of subsection (c)(3)—
(A) the term “severe mental pain or suffering” shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340 (2) of this title;
(B) the term “serious bodily injury” shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113 (b)(2) of this title;
(C) the term “sexual contact” shall be applied for purposes of paragraph (1)(G) in accordance with the meaning given that term in section 2246 (3) of this title;
(D) the term “serious physical pain or suffering” shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves—
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty; and
(E) the term “serious mental pain or suffering” shall be applied for purposes of paragraph (1)(B) in accordance with the meaning given the term “severe mental pain or suffering” (as defined in section 2340 (2) of this title), except that—
(i) the term “serious” shall replace the term “severe” where it appears; and
(ii) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term “serious and non-transitory mental harm (which need not be prolonged)” shall replace the term “prolonged mental harm” where it appears.
(3) Inapplicability of certain provisions with respect to collateral damage or incident of lawful attack.— The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a) by reasons of subsection (c)(3) with respect to—
(A) collateral damage; or
(B) death, damage, or injury incident to a lawful attack.
(4) Inapplicability of taking hostages to prisoner exchange.— Paragraph (1)(I) does not apply to an offense under subsection (a) by reason of subsection (c)(3) in the case of a prisoner exchange during wartime.
(5) Definition of grave breaches.— The definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article.
_______________________________________________________________________
Obviously millions have been grievously harmed by war criminals in our intelligence services and in our military. These people were acting under the orders of the bush** administration. Regardless of whether we like it or not, they were the 'legal' government of our country at that time. So what it boils down to is that our government committed war crimes. And foreigners have sued in this country before for harms caused to them.

<snip>
Sosa v. Alvarez-Machain

Docket: 03-339
Citation: 542 U.S. 692 (2004)
Petitioner: Jose Francisco Sosa
Respondent: Humberto Alvarez-Machain, et al.
Consolidated: United States v. Humberto Alvarez-Machain, No. 03-485

Facts of the Case

A U.S. Drug Enforcement Agency (DEA) special agent was kidnapped and murdered by a Mexican drug cartel in 1985. After an investigation, the DEA concluded that Humberto Alvarez-Machain had participated in the murder. A warrant for his arrest was issued by a federal district court. The DEA, however, was unable to convince Mexico to extradite Alvarez-Machain, so they hired several Mexican nationals to capture him and bring him back to the United States. His subsequent trial went all the way to the Supreme Court, which found that the government could try a person who had been forcibly abducted, but that the abduction itself might violate international and provide grounds for a civil suit. When the case went back to the district court for trial, Alvarez-Machain was found not guilty for lack of evidence.

Alvarez-Machain then filed a group of civil suits in federal court against the United States and the Mexican nationals who had captured him under the Federal Tort Claims Act (FTCA), which allows the federal government to be sued on tort claims, and the Alien Tort Statute (ATS), which permits suits against foreign citizens in American courts. The government argued that the FTCA applied only to claims arising from actions that took place in the United States and therefore did not cover Alvarez-Machain's case because the arrest took place in Mexico. Further, the government and the Mexican nationals argued that the ATS gave federal courts jurisdiction to hear tort claims against foreign citizens, but did not allow private individuals to bring those suits.

http://www.oyez.org/cases/2000-2009/2003/2003_03_339/

[caseymoz]

17. The law doesn't mention the right to bring civil damages, however.

Also, there's a question of whether they were held as POW's, and whether when they were held, it was as members of a nation that's signatory to the Geneva Convention (which, BTW, does only apply to other signatories).

So, there are a lot of rulings that need to be done on this point, and any one of them could cause the case to sink.

[acmavm]

18. Yep, there are. I had to update my post because I didn't show that

foreigners do have the rights to sue for damages in US Courts.

[The Stranger]

10. I think your post just fails, period.

What makes you think Constitutional rights are limited to citizens?

[TwilightGardener]

14. Isn't that the whole point of declaring that detainees are "unlawful combatants"?

Because it puts them outside the realm of both American legal AND Geneva Convention protections--not saying it's right, of course. It was the Cheney way of being able to round up just about anyone and hold them indefinitely.

[The Stranger]

37. It is a fabrication, yes.

There is no such thing as an unlawful combatant. It is a fraud. Either the accused is a defendant, i.e., accused of acting unlawfully, and subject to and entitled due process, or the accused is a combatant, and subject to the Geneva Conventions.

You cannot fabricate a third category because you want to skirt the law.

[Prophet 451]

80. It DOESN'T put them outside the Conventions

Let me make this very clear: CheneyBush simply pulled the "enemy combatant" definition out of their collective ass and browbeat everyone into not questioning them. It doesn't matter what CheneyBush called them, they are still covered by the Conventions.

[caseymoz]

28. Rights apply to everyone.

Though legally speaking, the question is largely unclear right now , rights are universal, according to our Founding documents.

Also, I don't know how rights can be maintained for citizens if non-citizens don't have them. According to the Declaration, all men (and women) are endowed with certain inalienable rights. Now, that's not the Constitution, but it indicates how the Founders saw rights when they wrote the Constitution; Rights were absolutely universal which is why a (foreign) king lost his rights to rule when he violated them.

Moreover, I'm conjecturing that the treaties that we've signed, including the Convention Against Torture, strongly imply that rights do apply to everyone, and because treaties signed under the Constitution are the supreme law of the land equal to the Constitution, then we are obligated to treat rights universally.

If rights only apply to citizens, then it would imply that they are unimportant to human affairs because our government doesn't have to enforce them universally. This says people can live without them. The slippery slope argument applies here. The government has a basis then to make more exceptions about them, or consider rights a subset of privileges since they are granted when a person becomes naturalized.

So, IMHO though I'm not legally trained mind, not protecting the human rights of foreigners is more of a legal artifact, a matter of which government in the world was responsible for enforcing them for a particular person. If rights were violated, then our country couldn't do anything about it anyway, so why bother? Nevertheless, if people in peacetime are in any area that's administered by our government, then the US is obligated to recognize and protect their rights. Period.

[No Elephants]

44. Don't cite the Declaration of Independence. It has no legal effect. We have one "founding"

document that has legal effect and that is the Constitution. The Constitution says nothing about inalienable rights.

[caseymoz]

68. But judges study the intent of the Founders when they make Constitutional decisions.

For that, they look to other writings of the Founders, including the Federalist Papers, the debates within the State Legislators about ratifying the Constitution, early Federal Court cases, and yes, the Declaration. It seems to me that to find out about the concept of rights, the Declaration would be the main source, along with Thomas Paine's "Rights of Man."

However, all I wrote in the previous post was my position and why I think it's supported. It's not to be taken as some insight of absolute truth, but I wish our government would see it that way.

[No Elephants]

82. The Court looks to the intent of the Founders. However, unlike the other things you cited, the

Declaration really has nothing to do with the Constitution.

I have read a good number of Supreme Court cases and I have read about a lot more Supreme cases than I have read. I don't know of a single one that relies on the Declaration of Independence to determine what the Founders intended in the Constitution.

If you know of one, I would love for you to tell me the name or the subject matter and I will look it up and stand corrected.

Until then, though, I'll have to disagree with your assertion.

[caseymoz]

83. Here's a hundred of them:

http://members.tripod.com/~candst/doisussc.htm

And the first one alone should prove my point.

[No Elephants]

85. Thank you. Actually, your source seems to prove my point.. Let's try this

again.

My prior post said:

"I have read a good number of Supreme Court cases and I have read about a lot more Supreme cases than I have read. I don't know of a single one that relies on the Declaration of Independence to determine what the Founders intended in the Constitution.

If you know of one, I would love for you to tell me the name or the subject matter and I will look it up and stand corrected.

Until then, though, I'll have to disagree with your assertion."

Note above the word, "relies." It means something.


Now, from your source.

"A quick search at Findlaw indicates that there are at least 100 United States Supreme Court cases that mention the words "Declaration of Independence" somewhere in the dicta of that opinion.
Yet, not one single case can be found where the authority for the holding in that case was the Declaration of independence.
There is not a single case that was "specifically decided on the Declaration of Independence or its provisions." No decision has turned or can turn on the Declaration of Independence itself."

Your source shows that SCOTUS cases mention the Constitution. No surprise there, and I never said that I never said no SCOTUS case ever mentioned the Constitution. However, there is a big difference between a court's bloviating about the Declaration while rambling in the course of its opinion and a court's basing a decision on the Declaration.

Your source confirms what my readings of cases had indicated to me, that the Supreme Court has never relied upon the Declaration of Independence to decide any case involving the meaning of the Constitution.

And, the SCOTUS has certainly never held we have natural rights or inalienable rights.

Thank you for the source, though. It looks interesting. I am going to save it to favorites and read more when I have time.

[caseymoz]

92. Please understand first: what I've been writing is my own strong belief about it.

That is to say, it's my policy that I assert and work toward, and how I've reasoned it. It really as really nothing to do with the court. Our argument, however, is not over that point. It's over how the Courts have made their decisions. Really, I wasn't referring to the courts. I was referring to an ideal, and gave my reasons to support it.

However, let's carry on. Here's what you said:

"I don't know of a single one that relies on the Declaration of Independence to determine what the Founders intended in the Constitution."

Here's what my source said:

"Yet, not one single case can be found where the authority for the holding in that case was the Declaration of independence. There is not a single case that was 'specifically decided on the Declaration of Independence or its provisions.' No decision has turned or can turn on the Declaration of Independence itself.'"

The source doesn't really make your point, (at least not by what I understood from your statement above.) It doesn't say that the SCOTUS never relied on the Declaration to determine what the Founders intended in the Constitution. In fact, that very first case listed and quoted shows that what you argued was false. I'll point out one other thing: it also says that no case has been decided specifically based on the Declaration of Independence. (Now, despite what you wrongly presumed, I did read my source.)

Now, it does turn on a connotative difference. Does "rely" mean turn the entire decision or provide a definition perhaps hidden in the decision? If they use a certain definition for rights, does that mean that the definition, sight unseen, turns the whole case?

Also, a point that I haven't made, even though Justices might not refer to the Declaration in their writings, it doesn't necessarily mean that their definition of rights was not made early on based on the Declaration. This one is speculative, of course.

Lastly, the subject has restricted itself to the SCOTUS when it's truly the tip of the pyramid. How have lower courts reasoned it given the quotes the Supreme Court I've given. We just can't know without a lot of study requiring much more than Google.

[No Elephants]

93. Let's see if I can take this a piece at a time.

I understand that you have a belief in natural rights. I have deliberately tried to avoid debating that issue head on. The reason for my avoidance is that I post almost exclusively on things in which I am interested. The natural rights discussion interests me only insofar as it intersects with law. So, I replied about not quoting the Declaration of Independence because the only founding document that has legal effect (currently) is the Constitution. (Things like the Articles of Confederation once did, but the Constitution has replaced them Others never had legal effect.)

You responded that courts look to the intent of the Founders to decide what the Constitution means. I agree with that. But, then you also said that they look to the Constituion for that purpose.

I said that I had never seen anything indicating that the Court "relied" on the Declaration to decide what the Constitution says or means. "Relied" means that the Court would have said, in effect, "On the basis of what the Ddeclaration of Independence says, we conclude (or hold or decide) that this part of the Constitution means X." What the Court holds in a case is the only binding part of the case, the only part that is precedent. The rest of the opinion is dicta, or nonbinding remarks. What I called "bloviating."

This is what your source said (caps mine)

"Yet, not one single case can be found where the AUTHORITY for the HOLDING in that case was the Declaration of independence. There is not a single case that was 'specifically DECIDED on the Declaration of Independence or its provisions.' No decision has turned or CAN turn on the Declaration of Independence itself.'"

The Court may mention the Declaration and go on and on about it for pages. However, when the rubber hits the road and the Court gets to the holding--the only really significant part of its opinion, it never says "And because the Declaration says this and that, we conclude this part of the Constitution means X."

If a court did say that, it would be relying on the Declaration for its decision about the meaning of the Constitution, but your source says that the SCOTUS has never done that and never even can do that.

Your source goes a lot further than what I said. I said nothing I read shows that the SCOTUS did that. Your source said the SCOTUS never did it and never CAN do it.

I honestly don't know how it can be clearer that your source supports exactly what I said and then some.

[caseymoz]

94. It looks like I misread you.

Of what you meant by no court has "relied" . . . and a misunderstanding on my part of the role that the written opinion has legally as opposed to the "holding."

Now, since the subject of natural rights doesn't interest you, there's really not to much left to discuss here.

However, I learned a lot from this argument, thank you, and I hope the website I showed you continues to assist and interest you.

So, let's call it quits.

[No Elephants]

95. Thank you, too, and I have saved that website to read when I have the time

and energy. Reading things like that takes more concentration than posting, so I have to be up for it. But I appreciate your posting it and I look forward to studying it.

[VermeerLives]

84. Exactly

I'd like someone to show me exactly where (and justify your position) in the Constitution rights can be conferred upon non-U.S. citizens, particularly those whose Raison d'être is the destruction of this country. Do you want these scumbags in your neighborhood prisons? I don't.

[merh]

89. They were detained on US soil

they have constitutional rights

think in terms of the english nannie charged with the crime, she was afforded constitutional rights

[Downwinder]

8. Bush-lite or Bush-heavy we shall see!! n/t

[geek tragedy]

21. The AP reports, and people here nod their heads without thinking

1. The government did not say that they had 'no constitutional rights.' It explicitly acknowledges that they have constitutional habeas rights under the Suspension Clause.

2. The D.C. Court of Appeals has in fact ruled that these prisoners do not have 5th and 8th Amendment rights.

http://ccrjustice.org/files/2009-02-18%20Kiyemba%20opinion.pdf

[No Elephants]

51. The government really had no choice but to acknowledge habeas rights. That issue had been

decided.

[geek tragedy]

56. Well, the Court correctly decided that these guys don't have

US Constitutional rights other than habeas. They have a right to access the courts, but they don't have the right to liberty under the constitution.

They have all the rights that are due them under international law--no more, no less.

[No Elephants]

76. The court decided that they have due process rights as well. I believe they also have right to

counsel. So that's three Constitutional rights so far.

Further the Court never decided that enemy combatants have no other rights. It has not decided about other rights because, until now, no one has as yet asks it to decide. Not deciding, one way or the other, means nothing, one way or the other.

However, the Court has given a (nonbinding) indication that it may find other rights, as follows:

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times." (Keendy, J., writing for the majority in the Hamdan case)


And, if the Court has decided they have habeas rights, due process rights and rights to counsel under the Constitution of the United States, you cannot keep saying that they have only international law rights. At least not if you want to be honest and accurate.

[Pastiche423]

22. Disgusting

[buckrogers1965]

31. The constitution uses the word people in the bill of rights.

Not Citizen.

Anyone harmed by the government of the United States has standing to sue the United States to redress those grievances.

If we deny people justice with legal trickery, then they will seek that justice in other ways. More violent and bloody and direct ways. But one way or another justice will be served.

[TwilightGardener]

34. Not true--I can't sue the federal government or the military if my child is harmed

by an Air Force doctor's malpractice, for example.

[caseymoz]

32. There are some issues in which Obama must be stopped.

http://www.miamiherald.com/news/breaking-news/story/947480.html

The Obama administration defending this case is unacceptable. This one is even worse:

http://www.salon.com/opinion/greenwald/2009/03/02/executive_power/index.html

We need Obama to stop this and willingly cut back on executive power and to stop defending presidential privileges asserted by the contemptible Bush Administration. I think everybody here should call the White House,and if calling doesn't work, go to Washington to protest it.

We now have a President who will listen to us, but we have to speak out about this.

k&r is you agree, please.

[Echo In Light]

33. Self delete - didn't realize this pertained to British citizens

[geek tragedy]

43. Obama's lawyers are right--they don't have 5th Amendment Rights.

Think about this:

1. These guys are being held on foreign soil. Yes, the federal government is leasing it from Cuba, but Gitmo is NOT part of the United States.

2. Why does this matter? Because if you argue that they have Constitutional rights that could wind up requiring them to be released, it raises a simple question:

Where do these guys go if you release them from the jail cells?

Do they hang around in Cuba? They can't walk around free inside Gitmo itself. And no other country is willing to accept them.

And they have no right to immigrate to and walk around free in the United States.

The answer is that they do not have a Constitutional right that could result in their being released from jail. There is no right to enter the United States for any non-citizen without a visa, let alone those suspected of terrorism.

Their detention and the conditions of their release are governed by international law.

[Downwinder]

50. They are in the same situation as inpressed sailors. You have to

go to Admiralty Law to find a similar situation. They were not brought to U.S. territory on their own volition. we created the situation so it is up to us to rectify it.

[geek tragedy]

54. And the Obama admin is working on it.

Somebody has to be willing to take these guys in. No court will ever hold that they have the right to enter the US. In fact, if they were to set foot in the US, they could be detained on immigration grounds.

[No Elephants]

52. SoJohn McCain had no business running for President bc he was born on a military base in Panama?

[geek tragedy]

53. McCain was born a US citizen.

These guys aren't US citizens and have no right to be inside the US.

[No Elephants]

61. Sorry, citizenship alone is not the standard for President. The Congress voted

on McCain's candidacy. The argument was that a U.S. military base is U.S. soil

[geek tragedy]

71. US citizens have a right to be inside the US.

McCain was born a US citizen, ergo he had a right to be inside the US.

[No Elephants]

86. You keep missing the point. McCain was born a U.S. citizen, but there is a Constitutional

issue about what the language as to qualifying for President means. It does not say simply "citizen," but natural born citizen." There is dicta in at least one SCOTUS case that indicates that a President must be born in the U.S. That is exactly what the whole flap about Obama's being born in Kenya was about. However, before the Obama fairy tale bubbled up, the Senate voted that McCain was eligible to run for President. The vote, of course, settled nothing because the SCOTUS would have to decide. However, The only reason that the Senate even voted on his candidacy was that he had been born on a military base in Panama. The vote is taken as evidence that a U.S. military base is U.S. soil, wherever it is located.

[Brgotn]

45. Obama is correct on this one.

By letting this proceed precedents could be set that could harm us in future wars. Me mustent let our hatred for Bush come cloud our judgment and do things that could hurt us in the long run.

[No Elephants]

55. This is not about hatred for Bush. It is about the rule of law. Either the treatment of

this prisoners was legal under applicable law or it wasn't. That would be true if Bush were never born.

If the treatment was not legal, we should not repeat it in future wars. And, if we repeat illegal behavior in future wars, it should hurt us.

[geek tragedy]

58. International law vs US Constitution--they have affirmative

rights under the former, but not the latter. The latter only gets them access to courts to vindicate the former.

[No Elephants]

62. My post did not decide whether or not they had rights. Hence, my use of "if." I was addressing the

assertion that hatred of Bush was blinding us.

However, the SCOTUS has decided that detainees in Guantamo do have rights under the Constitution, such as due process and habeas corpus. It had not decided on every single right, but it is incorrect to say Gitmo detainees have no rights under the Constituion.

[geek tragedy]

70. They don't have due process rights, only habeas, according to SCOTUS. n/t

[No Elephants]

91. UM, the SCOTUS most certainly did hold that Guantanamo detainees have due process rights.

http://www.humanrightsfirst.org/media/usls/2007/statement/310/


You confuse and/or conflate habeas corpus and the right to a trial. They are not one thing, but two different things. You might spend some time on looking up the terms rather than on continuing to contradict accurate posts.

[Echo In Light]

47. What were these 4 British citizens charged with and why?

[No Elephants]

63. A quick Google did not get me an answer. Perhaps you wish to be more thorough, but it

could conceivable be that they were never charged with anything. Initially, Buscho claimed it did could hold the detainees indefinitely without charging them or giving them access to a lawyer or to a court, etc. I did read that had been arrested in Afghanistan.

No charge justifies torture, though.

[jody]

57. Is that the "Change" voters expected when they elected Obama? n/t

[geek tragedy]

60. No one voted for Obama thinking he would hand out

'terrorist visas' to these guys so they could enter the United States.

[No Elephants]

65. I did not vote for him anticpating that he would defend

Bush's positions on renditions and torture. You've invented the issue of "terrorist visas." These men were not applying to visit the U.S. In fact, they couldn't get back to the UK fast enough.

[geek tragedy]

72. He's not defending Bush's position on torture

Thanks for playing though

He's upholding Clinton's position on renditions.

[No Elephants]

88. He most certainly is. Sending people we captured to other countries so they

can be tortured there? That's not about torture? And my post said "rendition and torture." Perfectly accurate.


Further, this thread is not about the general history of rendition and torture. It is about the position that Obama's D of J took in a particular case. Bush was the President when these guys were captured, and when this case was filed, not Clinton. Bushco filed pleadings in this case, setting forth Bushco's position in this case. Obama is defending the position that Bush took in this case.

Who first engaged in rendition is not especially relevant to this case or to my prior post. "But thanks for playing."

So maybe you want to hold the hold the snarks. Being sarcastic when you're off the mark only compounds your error.

[jody]

66. "hand out 'terrorist visas'" Did you read the OP, "Obama . . . four former detainees . . . have no

constitutional rights"?

What part of that NO are you having trouble understanding?

[geek tragedy]

69. They have NO constitutional rights other than habeas.

I agree with that holding.

They have GC rights and rights under international rights.

But, as non-citizens with no immigration status who have never set foot inside the United States, they have no rights under the US Constitution.

[jody]

73. I believe SCOTUS has decided similar cases under the Alien Tort Claims Act, link below.

http://cyber.law.harvard.edu/torts3y/readings/update-a-02.html

I believe if you google "Alien Tort Claims Act" you will find more than enough facts to cause you to revise your assertion.

[geek tragedy]

74. Access to US courts isn't the same thing as

Constitutional rights.

[jody]

75. I guess we'll have to see what SCOTUS says. n/t

[No Elephants]

90. You may agree with the arguments that Bushco and Obama proffered in this case, but

a holding is a court's decision in a case. The Court has not yet decided.

[paulsby]

67. lol. credibility much?

"and throwing a copy of the Koran in a toilet"

recall that a previous claim of this was reported in a major media outlet, caused massive outrage worldwide and was later determined to be... false.

the fact that the same complaint is being made by these people makes me suspect they read about it and are repeating it vs. it actually happened.

not saying it conclusively DIDN'T happen, but it is par for the course for complainants to repeat what they hear in the media.

[treestar]

81. They filed a civil suit

"no rights" could easily just be an exaggerated way of explaining a government denial of liability in the civil suit. In fact, the government will generally file an answer denying everything - all civil defendants do that. These cases may well end up being settled. But the government is not just going to allow default judgments in civil suits.

[No Elephants]

87. Who said anything about a default judgment. There is a difference between saying "You are not

entitled to damages in this case" and 'You have no rights whatever under American law."

[nolabels]

96. Fifty-thousand lawyers to the bottom of the sea !

It's at least a good start :shrug: