DIYbanter - View Single Post

Tim Daneliuk

wrote:
Tim Daneliuk wrote:
wrote:
Tim Daneliuk wrote:
SNIP

I don't trust any politician. But you are playing a not-too clever
game of misdirection. The right of habeus corpus is extended only
to participants in our socio-legal contract. It is *not* extended
to foreign invaders.
A particulary pathetic misdirection. No one has suggested habeas
relief for foreign invaders. But I will later in this article.
There's a shocker.

You are not, by any chance, characterizing persons arrested in
Pakistan or Afghanistan, or captured in combat in Afghanistan
and taken to Guantanamo Bay, and who have never seven attemtped
to enter the United Statesas foreign invaders, are you?
I stand corrected. What I should have said was:

The right of habeus corpus .... It is *not* extended to
foreign invaders OR people with whom we are at war.

Are persons with whom we are not at war _potentially_ entitled
to habeas relief?

Only if they are otherwise participants in our legal-social
contract. For example, an Italian visiting the US legally
is entitled to such legal relief. An Italian doing crime
at the US Embassy in Rome is not except as provided by any
governing Italian law. It's worth mentioning that I certainly
agree that any international treaties to which we are party in
such a situation should be honored.

That the Constitution allows the Congress (nor the courts nor
the President) to suspend habeas corpus in the event of invasion,
makes it clear that habeas corpus applies absent an explicit, and
permissible, suspension.

See:

EX PARTE QUIRIN
317 U.S. 1 (1942)

The motion for habeas corpus relief was heard and denied by
the USSC. If the foreign invaders in question could not be, under
any circumstances, entitled to the writ the Court would not
have heard their petition, rather than hearing and then denying
their application.

No matter how much you try to dance around this
issue both history and legal precedent are on my side of this debate:
Please provide citations.
Your citations are utterly irrelevant because they are about people
who are _part of our socio-legal contract_.

Please explain how those foreign invaders, German-born Nazi sabotuers,
became part of _part of our socio-legal contract_.

Please explain how to identify those person who are and are not
_part of our socio-legal contract_.

By means of good intelligence, interrogation, corroborating
evidence, and the testimony of reliable witnesses. When
you catch someone calling 1-800-Al-Queda with C4 in their
apartment, it's a pretty big clue. FWIW, (I said I wasn't
going to do this), one of the strong arguments *against*,
say, torture, is that it corrupts your intelligence gathering
process. If we make it too easy to get "quick results" it's
just too tempting to tempting to use that shortcut and not
focus on sound intelligence gathering. Here again, the
Left opposition is incoherent. You cannot demand, on the one
hand, "no torture, no physical intimidation" and on the other
"no monitoring of suspicious telephone calls". Given that
times of great threat tend to assault our own liberties, I'd
much prefer to give the spooks some latitude - with oversight
and with sunset provisions for that latitude - than to be
tormenting prisoners. But the Left wants *neither*, and that's
just suicidal.

Sidebar:

If you back away from the political tempest and take the long
view here, what you see is a consistent attack in the US
intelligence gathering capabilities starting with the Church
Commission in the 1970s. That commission was inarguably
necessary because the CIA had been very naughty domestically.
But the Church Commission threw out the baby with the bathwater.
We crippled and demoralized the one group of people who have
a hope of acting prophylactically and preemptively. This
got slightly better under Reagan and, arguably, Bush 41, but
got much worse under Clinton. Whatever anyone thinks about
Bubba, he just completely missed the boat in engaging with
our intel people to stamp out UBL and his fellow fleabags.

And then please cite some support for the notion that being a
_part of our socio-legal contract_ is a prerequsite to habeas
relief.

Finally, please explain the legal meaning of _our socio-legal
contract_.

As legal citizens, immigrants, or guests, we implicitly bind
ourselves to a social/legal "contract". We agree to give up
some limited freedom in exchange for the benefits of a
democratic republic. None of us are truly and absolutely
"free" therefore. I am not free to cause murder and mayhem,
because by continuing to live here (legally) I am consenting
to the rules that govern my presence. So, a common criminal
is subject to that same contract ... and its consequences.

OTOH, a person on our shores *illegally* - whether by sneaking
in or because they are invading is, by definition, explicitly
defying our legal/social contract. They are effectively saying
that the rules do not apply to them and they wish to act in
the manner they do. In so doing, they lose the very protections
that legal/social contract provides. As a matter of good manners
and decent behavior, we often extend some portion of those protections
even to such illegal individuals, but _we are not obligated to do so_.
When and where we do so is a matter of judgment on our part. We
generally treat people sneaking over the Rio Grande with some
modicum of legal protection because they mostly do not present
any significant or imminent threat and it is in our interest
to maintain good relations with Mexico. But when someone says they're
coming to blow you up an then does it, all bets are off. We
simply have no obligation or need to treat the invader as anything
other than the soldier of an invading force. If they choose
to act by not wearing a uniform we can go further and treat them
as spies who have essentially *no* rights.

Please cite something, other than yourself, to support your
explanations.

Our "law", both given and found, applies to those people subject to it.
This is true by theorem. If it were not, then we could impose our laws
upon, say, a citizen living in Greenland. A person in this country
illegally and/or attacking it is no more entitled to habeas relief
(beyond that specified in international treaty to which we are party)
than they are entitled to vote, get access to social services, or demand
Social Security payments. The reason? They are not party to the contract
and thus cannot claim its protections. By analogy, demanding habeas
relief for everyone we encounter is like saying that you're entitled
to the benefits, but none of the responsibilities, outlined in a business
contract between me and my business partner. It fails the "common
sense" test.

They simply do not
apply to the enemy when engaged in war. This is US criminal, and
even indirectly, civil law you and yours keep trying to drag onto
the battlefield. The burden lies with you to show why the protections
of the Constitution, given and interpreted, should accrue to people
with whom we are at war. It is mind boggling you cannot grasp the
difference.

It is disgusting that you refuse to acknowledge that persons in our
custody and under our protection may or may not also be persons
with whom we are at war.

...
Just who are these invaders to whom you keep refering?
What country did they invade?
Again, it should have said "foreign invaders OR those with whom
we are at war".

Example of "foreign invaders": The 9-11 attackers.

Since habeas relief is mooted by death, that example is asinine
even for a straw man.

You know what I mean. Assume we'd caught them prior to the act.
They'd have no standing to demand habeas relief. Sheesh.

Example of "those with whom we are at war": "Insurgents in Iraq"

No one has suggested habeas relief should be available for
Iraqis in custody in Iraq. Another asine straw man.

Perhaps not, but habeas relief is one of a spectrum of US legal
protections debated. I've certainly heard repeated arguments
that said insurgents should be dealt with (some of) the same legal
constraints in place when a domestic felon is prosecuted.

Shall we now devolve into a Clintoneque debate about what words and
letters mean? It is absurd that any thinking person, regardless of
politics, insist that our legal protections be extend to a hostile
enemy during time of war. But absurdity is the special province of
the Modern "Intellectual" Left and the buzzing flies that surround
them. The Right is ridiculous, the Left is dangerous.

More sophisitcated that typical name calling,
but no more substantive.

--
----------------------------------------------------------------------------
Tim Daneliuk
PGP Key: http://www.tundraware.com/PGP/