[PassedOut]

kenberg, on Feb 15 2008, 11:27 AM, said:

Far better is to say: We are not going to do that. If the information is useful we still won't do it. If the Constitution does not specifically prohibit it, we aren't going to do it. We are not going to torture people. We are not going to send them to other countries so that they can be tortured there.

Such a decision could well have consequences and we should be prepared to accept them, but if we so choose then we can insist and we can provide whatever law is needed to back it up.

Very well said, in my opinion.

Rather than using force and bullying to get our way, we should focus on being the best nation we can possibly be. Over time (quite a long time, I suppose, given the actions of the Bush crew), we will gain some respect.

A strong defense is fine and needed. But invading other countries under false pretenses, torturing prisoners, and the like, undermines the very basis of our existence as a nation.

[TimG]

kenberg, on Feb 15 2008, 11:27 AM, said:

Me, I'll follow McCain's lead and go the non-torture route. Basically, I don't want my country doing what I would not have the stomach to do. But I do think this choice could have consequences. If torture never produced useful information, the practice would have died out.

Didn't McCain recently vote against a bill that would have put an end to water boarding by the US? I'm guessing I read that in this forum, so maybe the information isn't so reliable.

[finally17]

Quote

What does that have to do anything? Scalia is not saying that it's OK to torture prisoners in Cuba because the Cubans are doing the toruturing. They aren't.

We are talking about U.S. authority here.

I know. It was just a random example of the argument that "our laws are applicable here, their's there."

Quote

Of course we do.  Manuel Noriega is in a Florida prison right now.  What crime is he accused of committing on our soil?  What did Jose Padilla do on our soil?

Noriega was convicted of drug-trafficking and racketeering, crimes that I am sure happened on our soil whether he was here or not. I don't know the particulars that allowed the State Dept. to believe it was our right to try him. As for Padilla, I know absolutely no particulars either, except that I note that he was in fact arrested on US soil. If nothing else, he is lawfully a prisoner of war as well (this is supposedly his official status if net sources can be believed), having declared war against the US and having ordered acts of warfare.

Anyway, as for the important part, we seem to agree. You appear to believe that the government and agents of the government, when acting as said agents, must be bound by US law wherever they are. I basically said that in my last paragraph.

[jtfanclub]

finally17, on Feb 15 2008, 05:08 PM, said:

Anyway, as for the important part, we seem to agree. You appear to believe that the government and agents of the government, when acting as said agents, must be bound by US law wherever they are. I basically said that in my last paragraph.

If by that you mean that agents of the U.S. government must grant Constitutional rights to those people in their custody regardless of location, I agree with you. If what you're saying is that only agents of the U.S. government can be tried in the U.S. for actions not performed on U.S. soil, then I disagree.

Just a question of what you mean by 'law', I guess.

[grrigg]

Actually, I bet that Scalia would argue that its a big plus that we are a nation of laws and we dont have people randomly forcing their morality upon people. Whether those forcing it are activist judges or activist clerics. The job of the courts is to interpret the existing laws, not make new ones. We have a legislative branch, it is their job to pass new laws. However, the Congress has repeatedly balked at passing an anti-torture bill. They are bothered by Bush's platitudes about national security. And frankly I am not sure that the American people feel overwhelmingly on this issue or maybe the Congress wouldnt be so scared.

[mycroft]

What bothers me - especially about Guantanamo Bay - is the gaming. Deliberate, clearly stated, heartless and unethical gaming of the United States "rule of law".

It's not American soil, we have the base on lease from the Cuban Government. Never mind that they don't want us there, and won't cash the cheques. But it's staffed by Americans, and there's no non-National, non-prisoner on base, except when journalists or the Red Cross come. And it's under American jurisdiction - at least try doing something the U.S. doesn't want you to do. But it's not under American jurisdiction, at least for the prisoners, because it's not part of the U.S.

The same arguments go for extraordinary rendition, "torture", and everything else in this shoddy display of "we don't care, we don't have to, we're the Telephone Company^W^W Only Superpower" neo-imperialism masquerading as the War on Terror.

And this walking every single loophole, including a few they've had to cut out on the fly, is supposed to make us happy with or proud of the Land of the Free how, exactly?

Michael.

[finally17]

jtfanclub, on Feb 15 2008, 05:21 PM, said:

finally17, on Feb 15 2008, 05:08 PM, said:

Anyway, as for the important part, we seem to agree.  You appear to believe that the government and agents of the government, when acting as said agents, must be bound by US law wherever they are.  I basically said that in my last paragraph.

If by that you mean that agents of the U.S. government must grant Constitutional rights to those people in their custody regardless of location, I agree with you. If what you're saying is that only agents of the U.S. government can be tried in the U.S. for actions not performed on U.S. soil, then I disagree.

Just a question of what you mean by 'law', I guess.

I'm loath to say without careful individual consideration that ALL constitutional rights should be extended to those in the custody of agents of the US. "Cruel and unusual punishment," yes, it extends from a view of basic rights of humanity; "self-recrimination" yes, which at least serves to prevent torture; "habeas corpus" yes--but this clearly needs careful definition dependent upon situation. To quote from wiki "a writ of habeas corpus ad subjiciendum is a summons ... demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person."
What constitutes proof and lawful authority can not possibly be equal in all situations.

...Off the top of my head I'm not sure what else in the Constitution speaks to the particular issues of the thread. But there might be other things that I'm unwilling to extend, and I'm not going to do a careful study of the amendments to check...

As for the second part, I'm definitely saying "should," ie only agents of the government should be tried in the US for actions outside of the US ... and I believe it is the case that it is "can" (note that I submitted that Noriega was tried for crimes on US soil whether he was here or not...). Anything else is a violation of sovereignty I believe. But IANAL to know and understand the legal tricks the State Dept. actually pulls.

[finally17]

mycroft, on Feb 15 2008, 06:26 PM, said:

What bothers me - especially about Guantanamo Bay - is the gaming. Deliberate, clearly stated, heartless and unethical gaming of the United States "rule of law".

True dat.

[jtfanclub]

finally17, on Feb 15 2008, 06:34 PM, said:

Anything else is a violation of sovereignty I believe.

I have no idea what you mean by a violation of sovereignty. I don't believe it's a legal concept.

We have treaties with other nations, and those have a power equal to the Constitution. If we don't have a treaty with another nation, there is no legal concept of 'sovereignty'. We couldn't care less if you violate their laws or not, and we don't care if our agents violate their laws. Pretty much, we expect that our laws extend to the entire planet where we don't have a treaty to indicate otherwise, and we also expect other nations to feel the same way.

Here's a simple example: Piracy. An American ship gets attacked by pirates in international waters. Do you think that no American law has been broken? Do you think those pirates cannot be tried in an Amercian court? The history of trying and hanging pirates predates the Constitution, and any semblence of international law.

The concept that laws extend past borders is a pretty old one.

[Winstonm]

Quote

A Constitution governs the government. The U.S. Constitution says what the United States government can and cannot do, and clearly the government of the United States extends past the borders of the United States.

jtfanclub's statement is well said and the heart of the matter to me.

The Constitution limits the rights of the government. An actor for the government, be it a single CIA officer or an Ambassador, is still constrained by the limitation of governmental rights specified by the Constitution, and these specifications extend beyond the national borders. The entire argument against the 8th Amendment is ludicrous when it is the 5th Amendment that applies:

"nor be deprived of life, liberty, or property, without due process of law"

A government at its basis has only one single power - only one - and that is it has the power to deprive liberty. The U.S. Constitution has no other real meaning but to limit this power.

See, this isn't really about the threat of terrorists or insurgents or any other outside threat. The truly significant threat has been and always will be the threat of an unrestrained and all-powerful government.

[finally17]

jtfanclub, on Feb 15 2008, 07:44 PM, said:

finally17, on Feb 15 2008, 06:34 PM, said:

Anything else is a violation of sovereignty I believe.

I have no idea what you mean by a violation of sovereignty. I don't believe it's a legal concept.

We have treaties with other nations, and those have a power equal to the Constitution. If we don't have a treaty with another nation, there is no legal concept of 'sovereignty'. We couldn't care less if you violate their laws or not, and we don't care if our agents violate their laws. Pretty much, we expect that our laws extend to the entire planet where we don't have a treaty to indicate otherwise, and we also expect other nations to feel the same way.

Here's a simple example: Piracy. An American ship gets attacked by pirates in international waters. Do you think that no American law has been broken? Do you think those pirates cannot be tried in an Amercian court? The history of trying and hanging pirates predates the Constitution, and any semblence of international law.

The concept that laws extend past borders is a pretty old one.

Sovereignty

See specifically the section in the middle "sovereignty in international law."

Your example is completely meaningless, the open seas are an ungoverned region. I don't know the specifics of trying and punishing of pirates, today or 300 years ago, but to do so would not violate any other nation's sovereignty.

If you really believe our treaties hold the same power as the Constitution, you're fooling yourself. Whether they are supposed to, legally, or not, I can not say, but I doubt sincerely.

[jtfanclub]

finally17, on Feb 15 2008, 11:31 PM, said:

See specifically the section in the middle "sovereignty in international law."

Your example is completely meaningless, the open seas are an ungoverned region. I don't know the specifics of trying and punishing of pirates, today or 300 years ago, but to do so would not violate any other nation's sovereignty.

If you really believe our treaties hold the same power as the Constitution, you're fooling yourself. Whether they are supposed to, legally, or not, I can not say, but I doubt sincerely.

Going backwards, I meant legally that treaties have the same force as the Constitution. In fact, some people have argued that treaties actually have *more* power than the Constitution. I'll find sources for that if you'd like.

I read your link, and it doesn't tell me anything new. National sovereignty doesn't exist. Governments have sovereignty. If the United States declares that the Grand Poobah In Exile is sovereign of a nation, then we are not 'violating sovereignty' by breaking their laws. They actually named examples of that, like Norway's Government in Exile. If we recognize the other government (or some portion of the other government), then we have a de facto treaty with them. If we do not accept their government as legitimate, then the zone is either ruled by a different government we deem as the sovereign or it is lawless. There's really no such thing as violating sovereignty. All there is is refusing to recognize sovereignty, which we do all the time (such as with Noriega).

So, for example, if you kill somebody or sell American secrets in Iran, then you have committed a crime in a lawless region, as last I checked the U.S. considered the Shah to be the leader of Iran and he had no successor. So how is this different from piracy? Virtually all of the Guatanamo cases were picked up in lawless regions.



---------------do not read below this line---------------------------
Article 6 - Debts, Supremacy, Oaths
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
----------------------------------------------------------------------------------

[Winstonm]

Quote

What bothers me - especially about Guantanamo Bay - is the gaming. Deliberate, clearly stated, heartless and unethical gaming of the United States "rule of law".

There is no longer a "rule of law" in the U.S. What “the rule of law” means is that everyone accused of the same crime answers to the same law and is accorded the same process as everyone else. It also means that all accused are presumed innocent until proven guilty in a court of LAW.

With terrorists and insurgents, though, the government determines whether an accused is accorded these "rule of law" rights in federal-court or is denied "rule of law" in a torture/military-tribunal.

Zacharias Moussaoui (one of the military’s 20th hijackers on 9/11), Yaser Hamdi, Jose Padilla, Timothy McVeigh, and many other accused terrorists have been accorded the federal-court route. The accused terrorists at Guantanamo are being forced into the torture/ military-tribunal route - and without any habeus corpus or oversight, no manner to challenge the legality of the actions.

The government gets to decide which of these two routes an "accused" will take. That is not rule of law. That is governmental arbitrary discretion. That is government above the law. Guantemeno is not a prisoner-of-war camp, as there is no declared war. Guantanemo holds political prisoners believed to oppose U.S. interests. In this it is not a prison - it is a Gulag.

Let's don't kid ourselves and pretend to be a nation of laws and the "rule of law" when clearly we are no longer so.

If this is what the majority wants, I can only argue from a minority position and accept the majority will; however, before joining the majority, realize that standing up to terrorists does not mean abandoning the very laws, principles, and way of life that lie at the very heart of this nation.

The truly patriotic message is to say, no, we won't let anyone do this to our country, whether from outside or from within.

[Al_U_Card]

Well, it is either "an eye for an eye, a tooth for a tooth" or it is;

"we don't care that you would torture us in your country, you are in the custody and protection of the United States of America and are therefore protected by its laws and covenants and we will respect those rights as our application of them is our assurance that they will be applied to us."

[Winstonm]

TheGuardian.UK.Com reports on comments by Geroge Bush during a BBC interview.

In a wide-ranging interview, Bush:

Quote

· Defended the existence of Guantánamo Bay where many of those caught up in the US "war on terror" are held, and claimed that the US was a defender of human rights

.

Agree or disagree?

Quote

· Insisted the US still occupied the moral high ground worldwide.

World? What say ye?

Quote

· Stood by his decision to remove Saddam Hussein and claimed he would be vindicated as long as the US did not leave Iraq prematurely.

I don't remember "removing Saddam" as the basis for this decision. If this were the sole reason, was the decision validated?

Quote

But his most controversial remarks were over waterboarding. He told the BBC's Matt Frei: "To the critics, I ask them this: when we, within the law, interrogate and get information that protects ourselves and possibly others in other nations to prevent attacks, which attack would they have hoped that we wouldn't have prevented?

"And so, the United States will act within the law. We'll make sure professionals have the tools necessary to do their job within the law."

He claimed the families of victims of the July 7 terror attacks in London would understand his position. "I suspect the families of those victims understand the nature of killers. What people gotta understand is that we'll make decisions based upon law. We're a nation of law."

But Bush was undercut by a senior official in his administration who admitted yesterday, for the first time, that waterboarding is illegal.

L'etat ce moi?

Bush is the spokesperson for a particular belief system, so don't take these questions as a personal attack on him - rather, the question to me is how much support is there for this belief system? Is this belief system what the majority believes to be right? Or is Bush espousing a minority view and is that minority then using the power of the government to enforce that view?

[luke warm]

Winstonm, on Feb 16 2008, 10:26 AM, said:

Bush is the spokesperson for a particular belief system, so don't take these questions as a personal attack on him - rather, the question to me is how much support is there for this belief system? Is this belief system what the majority believes to be right? Or is Bush espousing a minority view and is that minority then using the power of the government to enforce that view?

as usual, imo, it depends on how one approaches the issue... philosophically speaking, in an argument between security and liberty i choose liberty... but practically speaking (and if you're a politician, especially if you're the president), i don't know how i'd react... do i always act as my conscious prompts? do i always act in a manner i perceive to be in the best interests of the citizens of my country? do i sometimes act one way and sometimes another? i imagine it would be an impossible task for me, which is why politics has never interested me - unless, as i've said before, i can be benevolent dictator

[finally17]

I'm basically done with this discussion, partly because I've lost interest, partly because it's lost focus, partly because my understanding was very incomplete (demonstrated below), partly because well....

But the question was raised about Manuel Noriega, so I thought I'd post the more educated information I gathered, in case anyone else was interested in my finding out more.

I happen to know a man who headed up this competition: Jessup International Law Moot Court Competition for several years and someone who worked directly under him, so I sent them the following question:

"What enabled the US to try, convict, sentence, and hold Manuel Noriega as a criminal."

I received the following answers...I can inquire for more detail if anyone is interested:

From the underling: "I think, by the way, that the answer is he was convicted of crimes under US domestic law that reached into the US, and that the US didn't recognize him as the leader of Panama, so he didn't have immunity to prosecution."

Response: "That's not really international law though, is it? I mean, it's just domestic law in a red suit and fake white beard."

From the director-dude: "Well it's international law to the extent that international
law (conflicts of law, in this case) permits the US to extend its jurisdiction to acts
which occurred outside of the US but have effects within the US (so-called "objective territoriality.") But yeah, the actual substantive law involved is US criminal law, pure and simple."


More from the director-dude:
"1) In order for a State to try a criminal for a crime, it must have jurisdiction over the person and over the crime.
2) Jurisdiction over the person is typically had by seizing the person. That being said, jurisdictional immunities (like Head of State) may apply. In this case, we argued against the immunity on some basis.
3) Jurisdiction over the crime must come from domestic statute that gives notice to criminals that their acts are subject to US law. In order to be consistent with international law, such jurisdiction must be consistent with one of the recognized bases of national jurisdiction, to wit:
i) territorial (the act occurred in your territory
ii) protective (the act harmed one of your nationals)
iii) nationality (the perpetrator is a citizen of your State)
iv) universal (the crime is one of very very few over which intl law obviates a better link with the State -- eg genocide)

The US also recognizes (though it is controversial) so-called "effects" (or "objective territorial") jurisdiction -- an act which, though occurring outside the US, has effects within the US."

There's some educated and expert detail, if anyone is interested.

[Winstonm]

finally17,

That was good information and thanks for digging into it - if I understand it correctly, it seems to coincide with my contentions that acts by government actors outside the U.S. are still subject to Consitutional law.

If Noriega can be brought to trial on domestic charges, then his government captors are held to the rules of U.S. law when acting in Panama. His captors could not have held him indefinately and tortured him into confessing all his accomplices and their whereabouts, for example, because this violates his rights as an accused in the U.S. legal system.