Comments for How the Supreme Court Got Boumediene Wrong: Rethinking Habeas&Other Fundamental 'Constitutional Rights' »
Posted By jovial 8 months ago in NewsAs any honest observer can see, a rather sad result arises from applying " American exceptionalism" to the law. If people (insofar as lawyers can be called people) are instilled with thoughts of American greatness throughout their early years, thoughts that are only further confirmed while in law school,where students quickly learn that America is the most just nation on earth, they logically come to believe that the law should treat Americans differently from non-Americans, because Americans and non-Americans are somehow different in some meaningful, even if undefined, way. When such exceptionalism is applied to constitutional questions the consequences can be calamitous. What results is the deprivation of civil liberties, individual, and human rights. What does not result is the denial of constitutional rights. How so, you may ask. Well, a dirty little secret which constitutional scholars and politicians alike do not want us to know is that, in a very real sense constitutional rights do not exist today, just as they did not exist in 1789 This is to say that the notion of constitutional rights, whenever it entered the American consciousness, is a dreadfully inaccurate and misleading concept.
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dgoodii8 months ago
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I still have not figured out how the supreme court has a right to tell the military how to deal with prisoners of war or any other class of combatant captured in combat. The Conventions and military justice system are there to deal with these matters. They are not criminals of US law, nor did they violate any civil laws, most may have committed war crimes of some type. Nations have always held prisoners until the war ended or they were able to be repatriated to their native country through diplomatic agreements.
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How do you deal with people who have no allegiance to a country at all. They are the land based equivalent of pirates, lawless groups with no homeland.
So to say they do not know why they are held is incorrect to begin with. The military courts/tribunals have taken too long, may be a valid point though. This may be a result of groups trying to force the trials into non military justice system. Justice in either system if open and fair is the same.
Terrorist and pirates have raised many questions that need to be addressed in dealing with them. I for one do not have an answer to this and nor do many nations, which is the reason the story was written.-
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Ratskii8 months ago
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dgoodii,
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I see a few problems with you're reasoning.
1) Since there is no official declaration of war against any country, the prisoners that the U.S. takes don't have any rights as a prisoner of war would have. The military is constrained as to how it can treat prisoners in time of war.
2) Regardless who you see us as fighting against and what you see the issues as being, there has to be some way to assure that people who are innocent have a chance to challenge their detention. The current system set up by the military is obviously inadequate since they have turned people loose that they've held for 7 years. It is a simple matter of what do we as Americans perceive as right and wrong.
3) Prisoners have died, either while in American custody (in Afghanistan for example) or after being turned over to other countries through extraordinary rendition. We as a nation are dedicated to doing the right thing. If the rest of the world sees us abandoning those ideals, it could go ill (or worse anyway) for our service people.
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Endoscopy8 months ago
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This story is super liberal garbage. I agree that the decision was wrong but for the reason that these are not "detainees" but prisoners of war. NEVER, NEVER, NEVER before have the courts done anything with prisoners of war unless they transgressed our law while being in a prison camp here. There was a case where some Nazi prisoners killed another non Nazi German prisoner of war. They were tried for murder and nothing else. What they did prior had no effect on them. After the war they were repatriated to Germany.
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What is the clue that this person has a super bias? "And as for Antonin Scalia’s cabal of right wing devils, they’re just evil, in addition to immoral, depraved, and criminal on top of, naturally, being brainless. "
This attack on judges that he does not agree with. The typical brain dead attack of liberals attacking the person not the concept. Another clue is the following, "the right wing dissenters were wrongheaded (as they often are)".
Tell me jovial since you posted this why do liberals say these HATEFUL things?-
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Endoscopy8 months ago
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Incorrect. The Geneva Convention does not apply since the kind of things they were doing when taken prisoner. What happens to prisoners taken in a war zone with the captured enemy combatants in civilian clothes? If you read the Geneva Convention these are left out unless they meet some very specific conditions. Our military had the right to summarily shoot them.
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hyperbola8 months ago
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Just good old American democracy Endo. Sad that you don't know what that is. We need to strongly restore the principle that NO ONE is above the law.
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Barack Obama, Torture Enabler
America is a nation of laws--laws enforced by Spain.
John Yoo, Jay Bybee, David Addington, Alberto Gonzales, William Haynes and Douglas Feith wrote, authorized and promulgated the Justice Department "torture memos" that the Bush Administration used for legal cover. After World War II, German lawyers for the Ministry of Justice went to prison for similar actions.... We've known about Yoo et al.'s crimes for years. Yet--unlike their victims--they're free as birds, fluttering around, writing op/ed columns...and teaching. At law school!
Obama has failed to match changes of tone with changes in substance on the issue of Bush's war crimes. Indeed, there's no evidence that Obama's Justice Department plans to lift a finger to hold Bush or his henchmen accountable.
"They should arrest Obama for trying to impersonate a President," one wag commented on The San Francisco Chronicle's website.
Fortunately for those who care about U.S. law, there are Spanish prosecutors willing to do their job. Baltasar Garzón, the crusading prosecutor who went after General Augusto Pinochet in the '90s, will likely subpoena the Dirty Half Dozen within the next few weeks.
....Which brings us to a leaked report by the Red Cross, famous for its traditional reticence to confront governments.... Since 1945, at least 70 doctors around the world have been prosecuted for participating in torture. But not Bush's CIA torture facilitators. Not by this president. Asked to comment on the Red Cross report, a spokesman for CIA director Leon Panetta replied that Panetta "has stated repeatedly that no one who took actions based on legal guidance from the Department of Justice at the time should be investigated, let alone punished." ...
Yoo, Bybee, Addington, Gonzales, Haynes and Feith were asked by the White House to come up with legal cover for what they knew or ought to have known were illegal acts under U.S. law, international law, and treaties including the Geneva Conventions (which were ratified by the U.S. and therefore hold the force of U.S. law). Since they don't deny what they did--indeed, they continue to justify it--their presumed defense if they wound up on trial in Europe would be that they were just following orders.-
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hyperbola8 months ago
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However, the decision in the 1948 trials of German attorneys immortalized in the fictionalized film "Judgment at Nuremberg" makes clear that a lawyer's duty is to the law--not his government. And not just his own country's law--international law.
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However, the decision in the 1948 trials of German attorneys immortalized in the fictionalized film "Judgment at Nuremberg" makes clear that a lawyer's duty is to the law--not his government. And not just his own country's law--international law.
The Nuremberg tribunal acknowledged that Nazi Germany was an absolute dictatorship in which everyone answered to Adolf Hitler and could be shot for disobeying. Nevertheless, the court ruled, "there were [German] restrictions for Hitler under international law." Despite his total legal authority within Germany, Hitler "could issue orders [that violated] international law." Obeying a direct order from Hitler, in other words, was illegal if it violated international law. And German lawyers went to prison for doing just that.
http://www.propeller.com/story/2009/04/12/barack-o... -
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Endoscopy8 months ago
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Poor hyper forgets that the actions of what liberals consider torture were shown to any member of congress that wished to go and discuss it with the people in charge of those doing the interrogations. Only one member of congress objected and my guess is that would be McCain. All the rest agreed or asked if something harsher should be utilized. Of course liberals hate to hear this because that means their Democrat members of congress approved of these techniques. Silly hyper the Muslim friend of Hamas. Should we start using the Hamas techniques? Beheading with a sword would get the attention of the rest.
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beavith18 months ago
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i don't know about super liberal garbage. its certainly superbly circular reasoning.
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its a human right so its not constitutional, its a human right.
you can't define something by saying it is itself.
this clown produces, what, 20 column inches of bloviation from it?
if they are in the US, they get habeas corpus. if they are not national actors shooting at us or our citizens and we get a hold of them, they go to a grey area like Guantanamo. they want to fight in teh grey area of the Geneva acoords, we treat them to the grey areas of the Geneva accords.
what is so freaking difficult about that?
but not now. we're offering constitutional protection to people who aren't citizens and/or aren't in the US.
Hey! I've got a great idea! why don't we just declare the Constitution in force around the world! we can just tell the other countries that they are now all americans. their old laws don't apply and they get all our protections! that'd be perfect!
i swear. what a bunch of morons. a bunch of morons... -
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Goppy8 months ago
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Well beav ... I can always tell when someone has no clear understanding of the issues by how many times they spout insults ... especially beav's favorite ... 'morons'.
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You want to know what's moronic? What's moronic is the crazy Ideology of "Textualism" ... as wacky a theory of jurisprudence as ever applied ... by activist Judges such as Scalia, Roberts, Alito and Thomas.
Textualism is the name of the Ideology promoted by the Federalist Society in which Judges try to DIVINE what our founders were thinking when they passed laws - and THAT is the basis of their interpretation.
This is nothing more than Shirley MacLaine channeling Thomas Jefferson and John Adams.
It's VooDoo - and yet ... this is what the Modern Republican has been reduced to.
A SANE ... RATIONAL Justice once said ..."The genius of the Constitution rests not in any static meaning in a world that is dead and gone ... but in the adaptability of it's GREAT PRINCIPLES ... to cope with current problems and current needs."
This is a MUCH better line of reasoning than Alito, Roberts, Thomas, and Scalia sitting in a circle, around a Crystal Ball - holding hands - and conjuring up figurines from our nation's founding.
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And yet ... this is The Modern Republican Ideology in America today.
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beavith18 months ago
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impressive. and pointless.
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let's not divert ourselves from the question. does the US constitution and its protections apply to non-national combatants?
me not being a lawyer and just going by the seat of my pants, i'd say no.
thanks to our SC, if we catch them and hold 'em, they get habeas corpus. POWs don't get habeas corpus.
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Goppy7 months, 4 weeks ago
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While I am, in this case, directing my reply to you - I am actually bringing these ideas into the 'open air marketplace of ideas'. ... ... ... I NEVER imagine that you or your like-minded cynics will derive much point.
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The Modern Republican is far too consumed by their Ideological Agenda - which unfortunately - is at odds with Traditional American Values and Human Decency.
I've long recognized that any extremist voice in Right Wing media will capture your attention like any sparkly bauble will capture the attention of any person with ADHD. And that's what y'all will go with. Until the NEXT sparkly bauble.
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Right now - y'all are entranced by Torture and Textualism.
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calitennflo8 months ago
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The obvious result of two extreme positions vs. each other...the conservatives and liberals. When one construes and does not deny or disparage others...the individual may not be either. (Conservative or liberal) They must rely on fact...plus the original intentions and desires of the ones that authored what they construed...plus historical proof, and any journal or information pertaining to gain fact.
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