One of the many interesting issues raised by the decision to try Khalid Sheikh Mohammed and other terrorist suspects in New York is whether transferring them to New York gives them any additional rights that they could assert to try to stop the prosecution against them. On Wednesday, the seven GOP Senators on the Judiciary Committee (including my former boss, Senator Cornyn) sent a letter asking the Administration if the transfer could somehow change the detainees’ immigration status. And others may be wondering if the transfer could create constitutional rights, such as Fourth Amendment, Fifth Amendment, or Due Process rights. The question is, does the transfer from one place to another itself create any rights?
The Fourth Amendment question has an easy answer: The detainees would not acquire any Fourth Amendment rights because their presence in the United States is involuntary. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). As for whether they picked up any other rights in the transfer, it seems kind of hard to answer because we still don’t know what rights they had while at Gitmo. With habeas jurisdiction established, courts were just beginning to get to the question of what rights the detainees actually had; without knowing that, it’s not clear how much the transfer could add.
More broadly, I tend to think that the rights question won’t matter so much in the end. The Obama Administration presumably agreed to transfer these guys because they were sure they would be convicted either way. I take that to be the gist of Obama’s response to the idea that it is offensive for KSM to get lots of rights in a criminal trial: “I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him.”
PersonFromPorlock says:
I dunno. Wasn’t the whole point of Gitmo that it was ‘outside the US’ and so the question of constitutional rights didn’t arise? My sense is that they may not ‘pick up’ any rights by being transferred here but the government is abandoning a major pretext for denying them the usual ones.
Incidentally, what happens if the courts take one look at the ‘guaranteed outcome’ and decline to participate in a show trial?
November 20, 2009, 6:13 pmOrin Kerr says:
PersonFromPorlock,
Yes, that was the point: But the point of Rasul and Boumediene was that this “point” was misplaced.
November 20, 2009, 6:34 pmHoward Gilbert says:
It depends on whether KSM is brought into the US as an enemy combatant or as a civilian defendant. As a criminal defendant, he has essentially the same rights as a Colombian drug lord extradited into the US. As an enemy combatant, he acquires no additional rights due to his transfer of location. During WWII 435,000 Axis POWs were transferred to the US and held in camps across the country, but they acquired no rights as a result. Status will be determined by the type of prison he is held in. If it is a military prison under the DOD, then he remains an enemy combatant, while transfer to a civilian prison staffed by US Marshals implies that he is a civilian defendant.
If KSM is an enemy combatant who is being tried in a civilian court for an international crime, then acquittal simply means that he goes back to being an ordinary prisoner of war held for the duration of the hostilities. Acquittal means he doesn’t get executed, not that he gets released. However, if he is a civilian criminal defendant, then acquittal means deportation because there is no remaining basis to hold him.
However, civilian trial carries with it procedural rights granted by statute that are different from the rights that would have applied under the Military Commissions Act. For example, Federal rules of evidence exclude hearsay, while the MCA would have allowed some hearsay. These rights arise from the decision to use Federal Courts and not location. In other words, if KSM were transferred to a camp in the US, but then tried by a Military Commission, he would have the same rights as he had before a commission at Guantanamo.
November 20, 2009, 6:36 pmgwinje says:
“Status will be determined by the type of prison he is held in. If it is a military prison under the DOD, then he remains an enemy combatant, while transfer to a civilian prison staffed by US Marshals implies that he is a civilian defendant.”
You use both “determined” and “implies.” I’m curious if there’s some authority stating that a person’s status is based on the place (nature of facility, not geography) of their confinement, or if you think the place of confinement implies a person’s status. I guess my question is, could KSM just be housed in whatever secure facility allows the most expeditious access to the courthouse, still remain in DOD custody (if that’s what it takes), and retain his enemy combatant status for the relevant purposes?
November 20, 2009, 7:28 pmMalvolio says:
Am I the only one a little nauseated by this whole give-him-a-fair-trial-then-shoot-him attitude?
I feel terrible for saying this, but I hope KSM (or, better, one of his less prominent co-defendants) is actually acquitted, on a technicality or just insufficiency of evidence and those mouth-breathers at Justice will have to let him go. If that happens, I will probably expire on the spot from sheer schadenfreude.
November 20, 2009, 8:01 pmRPT says:
You sound like one of those “terrorist loving” lawyers about whom Sen. Kyl was so upset.
November 20, 2009, 8:25 pmHoward Gilbert says:
A person’s status is not determined by the place of detention, but rather the detention is determined by his status. There are rules in the Geneva Convention, but the idea goes back hundreds of years. In Eighteenth Century terms, being a soldier is about duty and honor, and it would be intolerable to put them in a civilian prison where they have to associate with “common criminals.” So enemy soldiers must be detained by the military in facilities that only hold other captured soldiers and are separate from criminal prisons. Anything else is an affront to honor. We would probably use different language today, but the rule still holds.
However, since KSM is charged with a civilian criminal offense defined in international law (air piracy and murder arising from it) then during trial he can probably be held in the same type of facility that holds other accused criminals. The question is what type of facility do they use to hold him when he is not on trial. A formal declaration, however, might be made to explain why the court cannot consider bail (enemy combatant) or should remand him without bail (normal criminal).
November 20, 2009, 8:39 pmStrict says:
Malvolio,
You want a terrorist set free, just to make the Obama Administration look bad?
November 20, 2009, 9:22 pmLeo Marvin says:
Your acknowledgment that KSM may be acquitted confirms that “when he’s convicted and when the death penalty is applied to him” is the prediction of a confident prosecutor, not an admission that there will be a show trial.
November 20, 2009, 9:26 pmSandy MacHoots says:
Serious question: The Administration seems to be saying that we’ll try some of these folks in civilian courts and some in military tribunals. Some (in the blogosphere, at least) have suggested that the stronger cases will be brought in civilian courts, while the weaker cases where acquittal is possible will go to military tribunals.
If that’s true, do those in military tribunals have a claim that it’s unfair that they don’t get the same kind of treatment as KSM?
November 20, 2009, 9:37 pmaustin_libertarian says:
Asking the Administration if the transfer could somehow change the detainees’ immigration status–of all the STUPID QUESTIONS that those numb-skulls could possibly ask. And Obama is once again proving himself to be both a radical and an empty suit who won’t be seeing a second term.
If there really aren’t any rights to be obtained, or, in Holder’s words, ‘failure is not an option’ then why even bother transferring them to civilian courts to begin with? The answer is that it’s really not about them at all, it’s about Holder and Obama’s desire to put Bush and Cheney on trial, along with Ashcroft and Rumsfeld, both figuratively and literally. And, what an insult to the families of 9/11 victims and all who have fought for freedom on our behalf.
Disgusting.
November 20, 2009, 9:50 pmJeff Wilson says:
Won’t this be seen as poisoning the jury pool? How can these people get a fair trial if the Chief Magistrate is quoted while preparing the gallows?
November 20, 2009, 9:56 pmgeokstr says:
Of course it does.
It gives them the absolute constitutional right to be blatantly used as political pawns in the PR war to get the evil Bush/Cheney/Yoo/CIA/et al punished somehow for having policy differences with the lunatic left.
November 20, 2009, 10:42 pmHoward Gilbert says:
Sandy: In the US, we try Federal crimes in Federal court, State crimes in State court, and soldiers in Courts Martial. Murder can be tried in all three depending on where the crime occurs, the nature of the victim, and the status of the accused. It works the same way with enemy combatants.
KSM can be charged in civilian criminal court because he is charged with air piracy that led to murder. Jose Padilla could have been charged in a Court Martial with the military offense of “crossing lines without uniform”, but that charge cannot be made in Federal civilian court (because the offense is defined in international law and jurisdiction is given only to military courts), and a citizen like Padilla cannot be charged before a Military Commission so that means he has to get a regular Court Martial. Alien unlawful combatants can be charged with certain crimes before Commissions, including crimes that occurred in Afghanistan where Federal civilian courts have no jurisdiction. None of this has anything to do with how strong or weak the case is.
However, there were 45,000 enemy soliders in the Army of Afghanistan, while only 19 hijackers plus the five accused members of the command cadre. These five people may be guilty of crimes, but the other 45,000 soldiers should be held as enemy combatants/prisoners of war and cannot be charged in any court because, while they are dangerous enemy soldiers, they committed no crimes. During WWII the US held 435,000 POWs even though it was not a crime to be a German, Italian, or Japanese soldier and only a few hundred of them were ever tried for anything. Nobody ever believed that we had to try the other half million prisoners in any kind of court, nor should we expect to charge the other 99.9% of the enemy army in this war.
Under international law, it was not a crime for some Pakistani kid to cross the border and volunteer to fight in the Afghan army under the Taliban. The US has absolutely no right to prosecute some Yemeni for enlisting in the Afghan Army even if to do so they had to receive basic training at an al Qaeda camp. It is a fundamental violation of every principle of international law to imagine that you can declare the army of an enemy country to be a “terrorist organization” and then criminalize every soldier in the enemy army for some crime called “material support” that exists only in your own domestic law and is not recognized in international law. You might as well admit that you are tearing up the Geneva Conventions, the Hague Agreements, and pretty much everything else in the Laws of War.
What you are supposed to do is hold members of the enemy army, especially those who fought in combat and maybe killed Americans, as Prisoners of War for the duration of hostilities. They may not be subjected to any type of forced interrogation. They may not be punished. They may not be charged in civilian courts with civilian crimes. They may not be held in confinement in supermax prison cells for simply being enemy combatants (yes, that is one of our specific treaty obligations). They may, however, be detained in real POW camps for the duration of hostilities. How long that is depends on how long it takes the enemy to either win, surrender, or call the whole thing off.
The Right wing doesn’t like this because it means that not just the torture, but the entire detention policy was a serious violation of international law. The Left wing doesn’t like it because it means that people can be detained without lawyers and judges and trials. The American people don’t like it because if 9/11 was a crime, well then nobody could have predicted it. If it was an attack by an enemy that declared war twice and previously attacked a US warship, well then that sounds like we were pretty stupid ignoring the enemy and missing all the opportunities to defend ourselves.
It is not too late to close down the unlawful supermax at Gitmo and transfer the detainees to a proper POW camp as required by treaty. This is not, however, one of the options currently being considered. If you insist instead that people who are not criminals have to be accused and tried in some type of court, then it becomes rather random and arbitrary which particular type of court you assign them to.
November 20, 2009, 10:43 pmll says:
Why isn’t Gitmo a proper POW camp?
November 21, 2009, 12:05 amohgoodgrief says:
Isn’t the Secretary of Defense co-equal with the Attorney General? And isn’t the military’s handling, trials and incarceration generally regarded as outside the jurisdiction of the AG? At least insofar as the custody and trial of enemy combatants? Can Holder do what he is doing without the acquiescence of Gates?
November 21, 2009, 12:27 amRicardo says:
I’ve been seeing this “show trial” meme so much recently I’m really curious where it comes from originally. But are you seriously suggesting this is the first time you have ever heard of public officials going before the cameras in announcing how confident they are that someone will be convicted?
November 21, 2009, 1:43 amNoah says:
Isn’t it possible that the administration is trying to make sure they get the most bites at the apple here? We don’t know what he’ll be charged with yet but perhaps it goes something like this?
Try him in Federal Civilian court for things other than 9/11 – like the 1993 bombing or possibly Daniel Pearl’s murder.
If he gets acquitted, try him in a tribunal for war crimes and/or murder for 9/11.
If he gets acquitted, hold him for the rest of his life as a POW. He claims he’s in a war against the US that will only end with the destruction of the US. Well, so long as we’re not destroyed it’s an active war and he gets held legitimately as a POW.
November 21, 2009, 2:00 amKen Arromdee says:
The US didn’t recognize Al Qaeda as the legitimate rulers of Afghanistan. This Yemeni wouldn’t be enlisting in the Afghan army, they’d be enlisting in a very large, well-funded, gang.
November 21, 2009, 3:12 amegd says:
Usually the line is “the perpetrators will be brought to justice” or “X will receive a full and fair trial…”
I can’t recall any public officials saying “X will be convicted.” There’s too much chance for tainting the case. I wasn’t able to find anything like this (admittedly, Google is now tainted by Obama’s statement), are you aware of any specific cases?
November 21, 2009, 7:20 amHoward Gilbert says:
“Why isn’t Gitmo a proper POW camp?”
From the Third Geneva Convention:
A POW may only be held in close confinement (that is, in an individual prison cell) as punishment after being convicted of a military crime in a military court. A proper POW camp is a barracks (one in which you would house your own regular soldiers), although for a POW it may be surrounded by a fence and they may be constrained not to leave it.
In a proper POW camp, the detainees continue to function as a military unit. Captured enemy officers command captured enlisted men. This unit is, however, disarmed, cut off from the enemy army, and having surrendered is bound to follow the lawful orders of American officers just as they would previously have followed the orders of enemy superiors.
Those accused of a real crime (like KSM) can certainly be held in a prison during their trial, and then afterward if they are convicted and serve their sentence. Those whose only action was to join the enemy army, and those who have completed any sentence for a crime, should be held in a military camp surrounded by a security fence, not in yet another supermax prison now in the US.
Internment of enemy combatants without charge or trial is the way the POW system is supposed to work. That is not a problem. Close confinement of an enemy prisoner for eight years without charge or trial, however, is a clear, unambiguous violation of the Geneva Convention. Calling them “unlawful enemy combatants” without any sort of trial does not cure the violation.
November 21, 2009, 7:35 amPersonFromPorlock says:
Howard Gilbert is making sense: we created our prisoners as POWs when we declared a ‘war’ on terror and insisted it really was, legally, a war. Much of law’s ‘complexity’ comes from government trying to have its cake and eat it too and this is a good example.
November 21, 2009, 8:18 amOne Man's View says:
Orin — Well, maybe, somoeone should try to answer the question. From a purely immigration law angle the answer is, obviously, unknown at this point. But there are several colorable arguments for “yes.” Persons present in the US (as opposed to detained off shore or stopped at the border) are entitled to substantially more procedural rights in challenging their immigration status determinations. They often get a full panoply of appeals. For someone like KSM, in the event he were acquitted, I imagine the most likely challenge to any deportation proceding would be a claim of either asylum (for his political views) or that he would be tortured upon return to wherever we send him in violation of the Convention Against Torture. Both are quite plausible under existing law (though in practical terms, I expect that given his noterieity they might be rejected by the courts).
The US would be entitled to hold KSM pending the efforts to deport him. But at least under immigration law, if it were determined that there was a likelhood of, say, torture we would not be permitted to deport him and, in the end, we also could not hold him indefinitely. The SCt in a case called Zavydias held that presumptively a detention of 6 months to find a place for removal was the maximum.
So, to spin the hypo out, if KSM is acquitted, he would then be subject to an order of removal to say Pakistan. He could challenge that in court alleging he would be tortured in Pakistan if returned. If a court agreed and if the US could not find an alternate place to remove he where he would not be tortured (and which country would agree to take him??) then after 6 months he might, conceivably, be ordered released into the US. Unlikely — yes, highly. Plausible as a construction of law — yes, also.
November 21, 2009, 8:29 amRicardo says:
I was recalling another thread where someone found it untoward that Holder was saying how confident he was that KSM would be convicted. For examples of prosecutors making statements like this, take your pick. Giuliani in particular was infamous for waging war in the media with criminal defendants during his tenure as U.S. Attorney.
As for Obama, you are right it is unusual for a President to make a statement like this. Then again, it is unusual for a bipartisan committee to publish a report several hundred pages (the 9/11 Commission Report) detailing the evidence against someone like KSM before they have had a criminal trial. For Obama to honestly say he has doubts about the outcome of the trial would basically require him to distance himself from the work of the 9/11 Commission as well as question his own administration’s position in holding KSM as an enemy combatant. He is not a neutral or agnostic party in this case and there is no real reason for him to pretend otherwise.
November 21, 2009, 8:41 amSG says:
He is not a neutral or agnostic party in this case and there is no real reason for him to pretend otherwise.
The issue is that the assertions by Obama and holder directly contradict the idea that giving KSM (although not others) his day in court is necessary to restore international confidence in our justice system. If this were in any part a confidence building exercise, the Obama administration would be going to great length to emphasize the fairness of the process, not stating the outcome before hand. Since his actions contradict the explanation, the explanation must be wrong – so again, why is Obama is giving KSM a criminal trial?
This was explained at length in the other thread in which you were a participant. Why the protestations of ignorance here?
November 21, 2009, 9:52 amRicky Nelson says:
Glad you caught the application of Verdugo-Urquidez, but that court decision could actually support that Gitmo detainees gain more rights. The plurality in Verdugo claimed the phrase “the people” in the fourth amendment is a term of art that refers to persons as part of a national community. In order to determine if someone was part of this national community the plurality created an undefined “substantial voluntary connections” test. The only thing the court clearly states is that an involuntary presence in the United States is not enough to have a substantial voluntary connections. More importantly for the current case of Gitmo detainees is that the Court in Verdugo distinguished the phrase “the people” from the phrase “person” or “accused” which are terms that signify they are granted to everyone. So under Verdugo, Gitmo detainees would probably be given a lot of rights; perhaps not the fourth amendment.
Then again, were Verdugo decision ever to reach the Supreme Court for a challenge, it would probably be overturned or ruled as bad case law. Verdugo’s use of defining “the people” to deny a class of people their rights reminded me of this gold nugget from Dred Scott v. Sanford:
It’s bad when the logic of your opinion mirrors the worst Court decision in history so closely.
November 21, 2009, 11:49 amThe Watcher says:
The Watcher sees that some posters are confused by the terms used by Holder and Obama.
“Stronger”, as used by both of them, is not a term used to describe the type or quality of evidence against the accused. Rather, “stronger” is a term used by both of these men to describe facts or arguments that when used correctly by the defense and judge will place the Bush adminstration and military, and thus the entire GOP, in a bad light.
November 21, 2009, 11:52 amJakeCollins says:
I know what you mean. I have this asshole neighbor who is always mowing is lawn just to show up how crappy mine is. And his snotty kids are always making the honor roll out of spite… just to show up my beautiful but dumb children. And don’t even get me started about how bad his wife makes mine look…
November 21, 2009, 12:54 pmAriel says:
Howard Gilbert,
Two major issues with your analysis:
(1) The captured folks are not POWs (for the most part). Prisoners of War are the captured members of armed forces who follow certain requirements, such as carrying their weapons openly, segregating themselves from civilians, and having a uniform. The Geneva Conventions do not have something directly on point for these kinds of folks, but the categories of spy and saboteur are probably the closest. IIRC, there are no requirements for how you hold captured spies or saboteurs (but I could be wrong). Arguably, the Taliban might qualify for POW treatment, but I’m pretty sure AQ would not.
(2) The GCs were designed for nation-to-nation warfare. The original intent was to make fighting wars a slightly less nasty business by creating a system of reciprocal methods for good treatment of each country’s soldiers in exchange for other countries doing the same. The GCs may apply to an insurgency/insurrection context, but it’s hard to see how that would apply to an external force attacking through terrorist methods. Here, I’m not talking about a captured Taliban soldier, but a captured AQ member.
November 21, 2009, 2:05 pmPersonFromPorlock says:
It ought to be pointed out that Obama isn’t speaking as “Chief Magistrate” of the United States but as its Chief Prosecutor: and while his position is really more analogous to DA than prosecutor and he ought therefore to be more neutral, well, DAs often enough get carried away, too.
But I think it’s now incumbent on the real Chief Magistrate, Chief Justice John Roberts, to issue a statement guaranteeing the neutrality of the legal process KSM will face; and if he can’t make that guarantee because the administration has adopted a position of “KSM hangs for these acts, regardless,” to refuse to allow the criminal trial to go forward.
November 21, 2009, 2:11 pmPersonFromPorlock says:
Ariel: We declared war on terror and these guys are what terror’s soldiers look like. Which is why they’re POWs. If we’d called AQ a criminal conspiracy and declared war on any country protecting it we could have gone into, say, Afghanistan, put down their armed forces, captured the terrorists and had a nice distinction between POWs (the Afghan Army) and accused criminals (KSM et alia).
But we didn’t, and now we’re stuck with it if we have any respect for consistency.
November 21, 2009, 2:22 pmrbj says:
Howard, what about the odd case of Manuel Noriega:
http://en.wikipedia.org/wiki/Manuel_Noriega#Incarceration
(And yes I’m aware of the danger of relying on wikipedia, but I don’t see anything wrong about the information here)
Noriega is considered a POW, but is held in regular prison, though with some extra benefits as per POW status.
And I’m not sure why he’s still being held even though his sentence is complete — if France or Panama want to extradite him, they’ve had 17 years to to that already.
November 21, 2009, 3:59 pmAriel says:
To be clear, we did not declare war on terror. Congress authorized the use of military force against the terrorists behind 9/11. The grant of power to the executive was not broader than that, notwithstanding some of what he said. If you looked at his actions, though, he generally acted in comportment with that – we didn’t get involved in the Sri Lankan civil war.
Nevertheless, you may think that these are what terror’s soldiers look like. But that’s not what the Geneva Conventions define soldiers who receive POW treatment as. We can call them a criminal conspiracy, or terrorists, or whatever – they are not following the requirements under the Geneva Conventions to receive POW treatment. There’s no reason to think they should get it. The fact that some soldiers don’t comport themselves with the Geneva Conventions, and that arguendo we’re at war with them, does not mean that we have GC duties with regards to them.
November 21, 2009, 4:50 pmHoward Gilbert says:
Ariel: I am not talking about a “war on terror”. I am taking about what the AUMF identified as military force against the countries, organizations, and persons responsible for the 9/11 attack. Specifically, I refer to the subset of detainees that completed Basic Training (expecially at the al Farouq camp) and joined the Afghan Army under the Taliban. They were soldiers in the regular army of a recognized country and are entitled to the protections of international law.
Although the Bush administration disagrees with this statement, the full text of Article 4 of the Third Geneva Convention does not apply qualifications to members of the regular army of a signatory country like Afghanistan. The limitation on carrying arms openly and such (the four part test) applies in the text only to independent militia, and that was the understanding during negotiation of the text. However, since the interpretation is contested, this can only be determined authoritatively in court.
There is, however, an objective procedural issue that can be raised. A captured soldier must give his name, rank, and serial number (or equivalent) and signatories are supposed to furnish their soldiers with an ID card. The Army of Afghanistan provided no ID, and based on religious doctrine (Gods law is sufficient, there is no need for secular law including international law) no detainee has ever claimed POW status under the Geneva Convention even when invited to do so. Had they done so, that would have triggered an “Article 5 Tribunal” and there would then have been some legal process to determine status. Having neither presented ID nor made the claim, no individual detainee has a basis to claim that he personally was mistreated by the policy. That does not, however, resolve the contradiction between the claim that these people are enemy combatants and the claim that none of them can be entitled to POW status.
Getting back to the original question, however, if someone is brought into the US as an interned enemy combatant and is held by the military under conditions that conform to the Geneva Conventions, then there are 435,000 WWII precedents to suggest that they acquire no additional rights as a result of their internment. However, if you argue that they are some category of detainee not entitled to POW status, then any other label you put on them (terrorist, criminal, …) makes them a civilian whose entry into the US may provide additional rights they would not have enjoyed overseas or as an interned POW.
November 21, 2009, 6:09 pmSG says:
That does not, however, resolve the contradiction between the claim that these people are enemy combatants and the claim that none of them can be entitled to POW status.
Is your claim that every member of Al Qaeda was a member of the Afghan Army? Unless this is your claim I don’t see any contradiction. The US has consistently treated Al Qaeda as the functionally equivalent of a stateless militia, which would make the 4 part test exactly applicable. I don’t understand the basis on which you imply that is inapplicable?
I was not aware that no prisoner had requested an Article 5 Tribunal. I agree that they are entitled to such a hearing, and furthermore that the CSRTs as originally conceived were quite possibly insufficient. But knowing that no one has requested such makes claims that their rights have been violated totally specious. Article 5 only requires a hearing in the case of doubt, but if the detainee accepts their designation, then there is no doubt. Any process we provide can be at our discretion.
November 21, 2009, 6:44 pmreadery says:
U.S. v. Umbero-Urquidez addressed pointed out that defendants temporarily brought to the United States do not become members of the people and hence do not have 4th Amendment rights, 2nd Amendment Rights, 9th Amendment Rights, Priveleges and Immunities, etc. which belong only to the people or citizens.
The question is their status as persons. Even illegal aliens become persons when brought into the United States, just as even unwanted fetuses become persons by being born. And persons clearly have rights that non-persons, under cases like Johnson v. Eisentrager and Roe v. Wade, simply do not have
Roe v. Wade teaches that alhough government can apply moral values and principles in its dealings with non-persons, its ability to do so is highly circumscribed and scrutinized, and courts are on their guard to ensure that and government consideraion of non-persons does not unduly burdens Americans’ enjoyment of liberties, definitely including reproductive freedom and possibly including security.
Persons feel pain, but it is not at all clear whether non-persons are capable of feeling pain. It has been argued that the that non-persons feel pain is a mere religious idea and that government acting on it represents religious belief in violation of the First Amendment.
The constitution speaks of the “accused” as distinct from both persons and people, so government unquestionably can choose to charge non-person security threats and subject them to criminal trials rather than use military procedures, and could presumbly do the same regarding fetuses matters rather than use medical procedures. It doesn’t have to, but it can. But allowing accused aliens to enter the country has the same effect as deferring a criminal trial until accused fetuses are born. Instead of having only the rights of the accused, they also enjoy the rights of persons (and in the case of fetuses, the rights of people and the priveleges and immunities of citizens.) They have the right, for example, to due process of law which they are not otherwise entitled to.
Indeed, Roe v. Wade gives rise to some difficult questions about the morality of bringing non-persons into the country. Can one deliberately create a moral being when there wasn’t one before for the purpose of destroying it? A supproter of Roe might think the idea of trying a baby for its conduct while a fetus seems a bit odd. Is a person even responsible for conduct that occurred while it was a mere thing that happened to occupy the same biological body? Crime has a concept of personal responsibility that seems inconsistent with Roe v. Wade’s dichotomy of persons wih rights and objects in which government may have an interest but which have no rights.
But is this any different? The constitution definitely permits making non-persons into “accused”, no doubt with exactly this sort of case in mind But doing so seems to require a non-objectifying concept of non-persons that, while still compatible with the Eisentrager v. Johnson approach where regarding non-persons as objects was merely a choice government had, seems completely incompatible with the world after Roe v. Wade, which after all at its core requires government to regard nonpersons as objects, and severely circumscribes government’s ability to look upon them otherwise
The Roe binary doesn’t really seem to make sense here. We may believe aliens have fewer rights a foot across the border and entertain the idea that any government protection of them is only to protect international relations and implement traditional morality, but it’s difficult to reach the conclusion, as Roe did, that anything that isn’t a person thereby is nothing more than a sack of chemicals so far as rights are concerned. Its hard for us to actually think of them as sacks of chemicals despite the constitution’s command, as Roe v. Wade tells us.
We cling, when push comes to shove, to the very traditional morality Roe labored so hard to rid us of. Even Roe’s supporters don’t seem to be capable of actually applying its commands when push comes to shove.
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November 21, 2009, 11:44 pmHoward Gilbert says:
SG: It is not clear who is an actual member of al Qaeda. It may be that only Bin Laden and the Shura Council are members. Al Qaeda was a kind of corporation, a charitable foundation (Waqf), not an actual membership organization. If you count as members those who pledged the bayat or personal oath to Bin Laden, it may never have had more than a hundred people, and KSM claims not to have been one of them.
The primary function of al Qaeda was to get wealthy Arabs to donate some of their zakat (required annual charitable donation) to support the fighting in Afghanistan and to recruit religiously motivated Arab fighters to serve in front line units. In part, this involved a scam where people were told they were donating or volunteering to support Chechen rebels when the money and fighters were really going to the front lines to defeat fellow Muslims of the Northern Alliance.
Al Qaeda trained thousands of soldiers to fight in the Afghan Army, and many of the detainees in Guantanamo fall in this category. A few are famous like Yasir Hamdi, who was on the front lines on 9/11, was captured by the Northern Alliance, was turned over the the US, and whose case was one of the first Supreme Court decisions on detention. Although it is correct to say that these men were trained by al Qaeda, they were not members of al Qaeda and were soldiers in the Afghan Army.
Foreign fighters formed the 055 Brigade. The top ranking military officer among the foreign fighters was Mohammed Atef until his death in a US air strike. He was a follower of Bin Laden and might have been described as an al Qaeda member, but he was also an officer in the Afghan Army. His primary responsibility was the font line troops, but he was aware of and supported the separate terrorist operations.
A reasonable working hypothesis is that almost all the legitimate detainees (that is, excluding the Boumediene Bosnians and others freed through Habeas because the courts held they were not properly detained) were members of the Afghan Army under the Taliban, most of whom were recruited, trained, and equipped by al Qaeda at the al Farouq camp.
The failure of detainees to comply with Geneva procedures may strip them of any individual cause of action, but when we pass judgment on policy instead of looking for someone to sue, US assertions may fill in the missing procedural gap. The US classified many of these prisoners as “unlawful enemy combatants” because of a option authored by John Yoo that members of the Afghan Army under the Taliban were not entitled to the status of lawful combatants. If that opinion was wrong as a matter of law, then applying correct law to the same allegations of fact (that they were members of the Afghan Army) then makes them lawful combatants entitled to POW status. If we have been asserting as a basis for detention all the facts needed to establish POW status, a failure of the detainee himself to claim his rights formally does not absolve us of blame for not fulfilling our international obligations on our own initiative.
November 21, 2009, 11:47 pmSG says:
If we have been asserting as a basis for detention all the facts needed to establish POW status, a failure of the detainee himself to claim his rights formally does not absolve us of blame for not fulfilling our international obligations on our own initiative.
Thanks for the response. Your argument is colorable, but so is the counter-argument. I reject your conclusion that because they have a non-frivolous claim, we are obligated to give our nation’s declared enemies the benefit of the doubt, especially given that the enemy has not made any claim for greater status.
Note, my argument that we are not obligated to give the detainees POW status is not an argument that it would not be good policy to do so – the wisdom of that determination is a separate issue.
November 22, 2009, 12:45 amGene Madison says:
The Constitution does not grant anyone rights. So the answer to the question is quite simply, no… no rights are conferred upon him by the Constitution.
However, the Constitution does limit the federal government from infringing upon any persons rights. Since all men are created Equal, the Citizens of the United States have the right to privacy as much as the Citizens in Brazil have a right to privacy. It also means the military, when occupying another country, must treat the citizens as if they were home… Since the federal government is limited to the Jurisdiction established by the Constitution, the rules of government are always the rules of government, and cannot exceed them no matter where they operate.
It would also seem proper that before invading, we’d have gotten a warrant or something… but hey.. that requires probable cause for a specific crime.
I don’t support Terrorism of any kind… 2 wrongs don’t make a right.
November 22, 2009, 5:56 amKen Arromdee says:
I was not aware the Taliban was a recognized country.
November 22, 2009, 10:22 amreadery says:
The fundamental difficulty with this argument is that we know that the constitution defines what is and is not a person. We look to the constitution to tell us that. Only persons within the meaning of that term as used in the consitution have rights. Roe v. Wade tells us so, as does Johnson v. Eisentrager.
There may perhaps be personal rights in some abstract platonic sense, but since the concept of personhood is wholly dependent on the constitution and only what the Supreme Court declares to be persons in accordance with the constitution are in fact persons and have personal rights, any existence of personal rights with no persons to enjoy them wouldn’t really matter – it’d be a purely academic conception with no real-world significance.
November 22, 2009, 10:32 amreadery says:
Consider for example, cases like United States v. Alvarez-Machain (Constitution does not prevent Mexican national from being kidnapped and brought to U.S. territory) and Chrisopher v. Harbury (American spouse of Guatemalian allegedly tortured and killed by CIA in Guatemala has no remedy under U.S. law)
Cases like these, along with Johnson v. Eisentrager and Roe v. Wade, make the idea that rights precede the constitution completely meaningless as a practical matter, mere mumbo-jumbo. If the constitution provides the test to say who has rights and who doesn’t, then the constitution for all practical purposes supplies the rights.
November 22, 2009, 10:39 amAndrew J. Lazarus says:
I don’t understand why Gitmo prisoners were expected to demand Article 5 tribunals in the teeth of repeated public pronouncements by the Bush Administration that they had no such rights.
I sense a certain desire to blame the victim, which is especially ironic in view of the legal victories the detainees did manage in the US Court System.
Exactly. Why the Bush Administration wanted to do this is worth thinking about. My belief is that since they wanted to be omnipotent (Article II trumps Constitution, treaties, etc.) they had to feign being omniscient (except “worst of the worst” included 90-y.o. man in very first arrivals at Gitmo).
November 22, 2009, 12:10 pmAriel says:
Under the Geneva Conventions, spies and saboteurs can be executed, IIRC. If they fit into either of those categories, which, from what I sort of kind of recall they do, then putting them in the US would give them no new rights. It would change the location of their death.
November 22, 2009, 12:12 pmuberVU - social comments says:
Social comments and analytics for this post…
This post was mentioned on Twitter by marciahofmann: @tamaraholder Re: terrorism trial in NYC, thought you might find this interesting. http://bit.ly/7yq9bB...
November 22, 2009, 2:37 pmGene Madison says:
Where exactly is a person defined in the Constitution? The Constitution establishes government, not humanity.
Since the Courts have jurisdiction over all things arising under the constitution (Executive Authority, lack of constitutional authority beyond defending from invasion, and military action to overthrow a sovereign nation not directly involved, in order to engage in a civil war, etc) and since the federal government believes invasion and occupation of a sovereign land is constitutional… it becomes a territory of the United States until such time that military action has ended. This also makes all citizens of an occupied country, naturalized as citizens of a U.S. Territory.
The rights in Question are endowed by our creator, that ALL men are created equal. Every person has the right to protect his home from invaders, which is part of the Law of Nature, as well as nations.
In order to go to war with another country, there must be a dispute in which one side has suffered a loss due to some violation of treaty or the Laws of Nations. Being that Afghanistan had nothing to do with 9/11, and considering the Taliban asked for evidence linking Bin Laden to 9/11 (of which the FBI’s official position is no such evidence has ever existed) and President Bush refused. It is the duty of any civilized nation to request evidence under similar circumstances, so was not an unusual request.. however the invasion is an unusual response.
Imagine if during the American Civil War, Britain, France, Germany, etc all sent troops, who in turn assisted the South in crushing the North. Should citizens who only wish to protect their homes and families be convicted under a military tribunal? It’s one thing when the enemy is the first to invade, it’s completely another when you’re the invader. It amounts to Global Tyranny.. and Misdirected vengence.
If any exercise of powers delegated by the Constitution is for any other reason than what is declared in the Preamble (aka Intents and Purposes Clause) than such an exercise is unconstitutional.
November 22, 2009, 3:23 pmGene Madison says:
In United States v. Alvarez-Machain, the question was whether or not he was prevented from being brought to trial for alleged crimes. That doesn’t mean he was prevented from seeking damages. Like I said, the Constitution is suppose to limit government in all its actions, foreign and domestic…
In Christopher v. Harbury, you imply a ruling that is not the case. As with many cowardly decisions made by the courts, the Court violated it’s prime directive. Justice. It seems it plays to the advantage of Government at the expense of ignobles.
People seem to praise the Constitution for having bestowed upon the citizens of the states certain rights. Unfortunately, all the Bill of Rights did was declare what was already true. It didn’t change anything. It restricted the federal government from exercising powers that it was never granted in the first place.
If your conclusion is based upon the actual constitution, what do you need precedent for? Precedent is not the Rule of Law, the Constitution is.
November 22, 2009, 4:34 pmreadery says:
Roe v. Wade found such a definition:
Go through each of these provisions, strike out the word “unborn”, write in the word “extraterritorial alien” in crayon, and you’ll find a perfect fit — none indicates, with any assurance, that the constitution has any possible extraterritorial application.
Indeed, note the close parallel between Roe’s “prenatal application” language and Johnson’s virtually identical “extraterritorial application”
Now look at U.S. practices towards enemy combatants that it considered uncivilized — Indian wars come to mind, among others — and you’ll 19th century practices regarding disposing of undesired enemy combatants far freer than today, just like abortion practices.
An honest application of the test reaches one and only one conclusion.
Roe purported to provide a general test for what is and is not a person, a neutral test, one not invented specifically for abortion but rooted in general constitutional principles. A rather textually based test at that.
If it’s a valid test, it ought to apply here.
November 22, 2009, 11:58 pm