News I Hate This Week
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Friday, January 29. 2010
uberVU - social comments wrote:
This post was mentioned on Twitter by jasonberggren: NEWS I HATE this WEEK: http://bit.ly/9ipIDV
Unauthorized Christianity with Jason T. Berggren: News I Hate This Week
"Terrorists given Constitutional Rights like US citizens rather than treated as enemy combatants."
I've been noticing the debate on this issue for a few weeks now, and although I'm generally on the side of treating individuals committing illegal acts within this country as criminal suspects, with the presumption of innocence and the rest, that's not what I want to comment on.
Rather, I want to point out the innocent-sounding but dangerously misleading phrase "Constitutional Rights like US citizens".
I looked up a copy of the constitution to be sure I remembered correctly. In the bill of rights, there is no reference to "citizens". References are to "persons", "the accused". "the people", etc.
I believe this is not accidental, as slaves were not, as far as I know, considered citizens and the intent appears to be that they, along with other non-citizens, should share in the rights enumerated.
We see the notion of "priveleges and immunities" of US citizens" appear in the 14th Amendment, The relevant clause is as follows:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The language here is admittedly a bit murky, but it should not be read, IMO, as intending to restrict to citizens the rights which were previously enumerated for "persons".
In any case, I have never heard it asserted until quite recently that Constitutional rights were for "US CItizens". I think somebody out there is trying to use this phraseology repeatedly, hoping that people will come to believe that only citizens are guaranteed these rights.
My reading of the Constitution says different.
The Constitution is available for viewing at many online sites including here:
http://www.usconstitution.net/choose.html
-Steve
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I understand what you are saying. And what I am saying is accurate in this regard:
A non-citizen is certainly entitled to certain constitutional/civil/political rights under our civil laws. For example, when caught committing a crime, the perp is read the Miranda Warning. Although this is not specifically named in the Constitution, we understand that it is based on the 5th Amendment. This is what happens to citizens and non-citizens when committing a civil crime.
But a war crime is different.
Terrorists are not merely criminals. They are enemy combatants. Are we going to require our soldiers to read everyone they encounter on the battlefield their Miranda Rights? And give them an attorney and due process in civil court?
No. They should be brought up on charges by a Military Tribunal. It's quicker, cheaper, and safer.
Instead, now we have to pay for appeal after appeal. Even worse, everything they have said or admitted up to now cannot be included in these civil trials.
Make sense?
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Hi Jason,
I understand what you're saying here.
Your central point was one I was trying to avoid discussing for a couple of reasons. Whether or not somebody who commits a terrorist act is entitled to the protections of the criminal law is complex and messy, and can be argued on several different grounds.
From a moral standpoint, I can say that they should be granted those protections because it's the right thing to do, regardless of legalities. You can disagree. Going deeper than that can get into areas that are exhausting and make my head hurt. So I wanted to avoid arguing from that standpoint.
From a strictly legalistic standpoint, the issue is complex in differnet ways. First, I'm not sure "terrorist" is even well-defined legally There's a common-sense definition that we could probably agree on, but if we want to state as a legal principle that a terrorist is an enemy combatant, we'd have to pay attention to gray areas. Was the guy who did the Fort Hood shootings a terrorist? I think not - but if pressed I could argue the opposite.
Are all terrorists enemy combatants? Tim McVeigh was a terrorist by most definitions - but he believed himself to be acting on behalf of the country.
Also, does it make a difference that he was a citizen?
But the Detroit bomber was (probably) an agent of Al Quaeda, a group that has declared jihad against the US. Does THAT make a difference? That gets to the question of whether one can define a condition of "war" against a "non-state actor". My understanding is that existing international law is unclear or silent on this point. With the exception of civil war or revolution, the notion of war against something that is not a country has little precedent.
Moving right along. Let's suppose that there can be such a thing as a "war" against an organization. The Constitution enumerates the powers of Congress including:
"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water"
I do not believe the Congress has "declared war" since 1941. And, note it was done separately for Japan, Germany, and I think the other Axis powers individually.
Since then, weasel-worded resolutions such as "police action" and "authorization to use force" have taken the place of such declarations.
The government continues to use terms like "war on terror", "war on drugs", "war on crime", etc. because they make good propaganda. I suppose propaganda is legal under the First Amendment. But when it's used as a basis for legal decisions, I have to object.
So all this gets murky. That's why I didn't want to talk about it. What I DID want to discuss was the narrower question of "rights of US citizens".
I think that is a propaganda phrase - not that I'm accusing you of using it as such - but it's a phrase tossed around a lot recently, and I thought I should speak up before somebody just assumed that the Bill of Rights is for citizens only.
-Steve
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Head hurting...
I never intended to imply that only the Bill of Rights are for citizens only.
But there are some distinctions.
And I think in all cases you mention, there is evidence to declare them enemy combatants.
Thanks for the comments.
Have a great weekend!
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"I never intended to imply that only the Bill of Rights are for citizens only."
Agreed. I would not think that of you.
But I think others are not so innocent in their use of phrases like that (which are becoming more widespread) which is why I spoke up.
Best wishes,
-Steve
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Don't know if you saw them, but Chip has left some very interesting comments.
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So, here are my thoughts:
First, on the matter of applicability of the US Constitution to citizens versus non-citizens, I direct you to the first seven words of the Constitution: "We the people of the United States".
Americans are a self-governed people, with that self-governance defined by the Constitution.
That said, one of the founding principles of our nation is that "we hold these truths to be self-evident, that all men are created equal, and are endowed by their Creator with certain inalienable rights; that among them are life, liberty, and the pursuit of happiness".
As a matter of principle, we extend the recognition of the rights expressed in the Bill of Rights to all people, within and without our borders.
However, with respect to terrorists:
The Constitution is a social contract suitable only for a civilized people. The terrorists we are fighting are not civilized, and adhere to none of the principles of civilized society.
Such sub-human cretins cannot be rehabilitated or in any way dealt with under the presumption that they are civilized and would respect the tenets of civilized society.
Therefore, the Constitution is not applicable to them.
If they are US citizens, then we must afford them the rights and privileges of citizenship, even as we hold them accountable to the responsibilities of citizenship. Their end should be the death penalty meted out through the civil justice system.
If they are not US citizens, then their end should be at the end of the barrel of a soldier's weapon, or else rotting away in a military prison. (Club Gitmo was too kind.)
Sound too harsh? It shouldn't.
These are, after all, people who WILL kill us if we do not stop them first. Their only goal is martyrdom in the name of advancing radical Islam.
They wish to die for their god. We should ensure that they do so on OUR terms, not on theirs.
As for the crotch bomber: he should have been turned over to the military the second that he claimed to be acting on behalf of Al Qaida.
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Thanks for the passionate comments. I always appreciate them.
What else can be said?
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Chip,
Well, one thing jumps out at me. Either rights are endowed by the Creator and are inalienable, or they are granted by a social contract and are subject to the terms thereof. These are incompatible understandings of what rights are, and I think we need to pick one or the other.
We apply the Constitution to psychopathic serial killers who mutilate their victims for the thrill of it. They are arguably even more "subhumnan" than today's terrorists, who at least believe themselves to be fighting for righteousness, however deluded they may be.
I personally don't think there is any such thing as subhuman people, at least not permanently. We are all, of course, capable of being subhuman when we so choose.
Whether or not you intended it, I take your arguments to imply that people come in two sorts. Terrorists, who are "subhuman", and the rest of us, who, although capable of great evil, nonetheless have something decent within us and are always capable of repentance and redemption.
Don't get me wrong. Terrorism as a strategy of war is evil.
The targeting of innocent civilians in war is an evil above and beyond the necessary evils of even a "just" war. These evils are heinous whether done by terrorists, as in recent times, or by governments, as in the case of The firebombing of Dresden, the Nuclear attack on Hiroshima and Nagasaki, the napalming of Vietnamese villages, etc. I mention these examples because I live in the country that perpetrated them. I certainly don't intend to suggest that other nations are not equally guilty.
But we do not typically regard the leaders who ordered these actions or the people who carried them out as "subhuman cretins". They are sinful humans whose sins took the form of spectacular evil. And, although this is not really a numbers game, the death toll in these incidents was hugely higher than even 9/11,let alone failed attacks.
One standard of morality that is useful to consider is whether an action would seem appropriate if the shoe were on the other foot. If the Japanese had been able to capture the crew of the Enola Gay, would treatment like that given to the prisoners of Guantanamo have been appropriate? Suppose they had been able to capture President Truman who ordered tha attack?
Or is the standard "it's okay when it's our guys"?
-Steve
P.S. For whatever it's worth, quite a few members of terrorist organizations have backgrounds as skilled professionals who function in a civilized manner outside the context of their terrorist activities. I don't think the subhuman cretin theory really explains what's going on there.
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