A question about America

[musashi]

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general welfare, and secure the Blessings of Liberty, to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

As an American it feels odd to ask this question, but what Constitutional rights does non-citizens of the US have?

I thought about this after President Bush’s speech today. He essentially (and allegedly) closed the secret CIA prisons holding terrorists. His primary motive was based upon a June ruling of the US Supreme Court.

I know the secret prisons are an immensely controversial topic. But as I thought about the President’s words, I couldn’t help but ask myself “What constitutional rights does Osama bin Laden really have?”

Osama is not a US citizen, he is Saudi Arabian. In case you don’t know the quasi-Muslim government of Saudi Arabia has a record of appalling human rights abuses. And he is presumed to currently reside in Islamic Republic of Pakistan. Amnesty international shows Pakistan also has a very poor human rights record.
The rule of law is dramatically different in bin Laden’s home country, and his current residence. Further he acts as a “state-less” rouge operator. What is the appropriate jurisdiction for Osama?

To me the answer is “when in Rome, do as the Roman’s do.” But from the President’s speech it seems like Osama bin Laden has some Constitutional rights, even though bin Laden is violently opposed to the words of the preamble. What rights should a terrorist have?

[Oleksandr]

What rights should a terrorist have?

None.

A terrorist initiates physical force, which is the only way to negate one's rights. Thus, a terrorist has no rights. Gov't should do whatever is needed to protect its citizens from harm of terrorist.

[Koruptdeath]

IMO, America should protect it's own.
If you're not a citizen you do not have any rights within our borders, the only exceptions to this would be maybe like... war refugees or something of that nature. If you're not a citizen of this country you don't really deserve to be protected be it's constitution, nor should you be allowed to indulge in American life.

To be honest, for the many and atrocious war crimes Hussein commited in his reign, I think he should have received capital punishment. As human beings we are judged for our actions no matter the cause of them. When it is determined that your acts are obscene and of unmoral nature, your punishment should be equal if not that much worse than the crimes you are guilty for.

[ForumAdmin]

International Law, UN convention, Law of Armed Conflict (LOAC) and the Geneva Conventions are used to initially define the status of an individual. For example, if we capture a "terrorist" in Iraq, he will fall under the Geneva Conventions and applicable UN treaties. US law is not applicable outside of US boundaries for the most part (exemptions to this are when you leave the US with the intent to commit an act that would be a crime in the US but not in your destination country).

So, how the US handles those "terrorists" it captures is governed the Geneva Conventions and LOAC specifically. LOAC is especially relevant today because it is designed for more unconventional warfare and when observance of the Geneva Conventions is one-sided.

There is another aspect to this too, and that's Charter and regulations of the govt body acting. The CIA Charter, for example, explicitly denies the CIA the ability to pursue intelligence activities domestically unless a case they are dealing with enters the US (thus entering a location they have no authority to act in). At that time, they must coordinate with the FBI or some other organization who has chartered authority to act domestically; otherwise it is 100% illegal for the CIA to gather intel within the US.

Charter also defines the limits of agents of these organizations abilities to act. Just because the "terrorists" in question are not being governed/protected by US criminal law does not mean that the agents are free to do what they wish, as they are still governed by US criminal law There is a distinct difference between what the law says YOU cannot do and what the law says the "terrorist" does not have to ALLOW to be done to him. In this case, the latter is irrelevant, unless the charter of the organization explicitly states otherwise. For example, the Uniform Code of Military Justice that governs all military personnel has specific rules against murder, rape, and the like due to the nature of the job. I assume the CIA/FBI/etc have similar legally binding regulations.

These are dubious questions only because the treaties the US originally pushed to write are inconvenient for the administration in how they handle the GWOT. A plan that was less agenda/principle and more action/winning would not take issue with these constraints that we have set.

While in the US all people are under the authority of the US govt. The only people exempt are those on diplomatic passports. If someone is captured in the US committing a crime, then they are completely under the authority of the US legal system.

There is a system in place already to handle warrants and subpoenas involving classified information. This bench of judges has existed since the 50s. They are given security clearance and given access to the relevant classified information as necessary. These judges are under the authority of Judicial Branch, and NOT the Executive, who has no authority to perform any kind of trial.

The Department of Defense, being a department of the Executive Branch, only has legal authority to try a military member on a charge that is derived from the Uniform Code of Military Justice. The UCMJ applies only to military members who are sworn in and agree to be under its authority. Example: If a civilian jumps the fence at a military base in Florida and tries to break into a building, all the military can do is DETAIN the civilian until proper civilian authority arrives to arrest them based upon civilian law. THE SAME IS LEGALLY TRUE IN IRAQ, UNLESS THEY ARE AN ACTIVE COMBATANT. This fact is so distinct and critical that military police do not even arrest military members for UCMJ violations but APPREHEND them. However, for all practicality arrest and apprehension should be considered the same.

The distinction between combatant and civilian criminal are governed by the Geneva Conventions and Law of Armed Conflict (LOAC).

Ok, that's a lot for now; maybe I'll finish this later. heh

Adam

[musashi]

It sure does appear the Law of Armed Conflict is the most pertinent international regulation. But in my opinion the whole system of Geneva Conventions break down when they are applied to non-state entities(NSE).

These non-state entities (ie: Croatian, Tutsi, al Qaeda, Humas, or Hezbollah et al) all operate in complete and total defiance of these conventions. Ironically there seems to be a pattern, non-state entities have spawned the majority of the world’s armed conflict over the past 50 years.

In this instance the Geneva Conventions restrain legitimate society while providing support to the lawless. This seems wrong to me. It breaches the concept of comity. We have two antithetically divergent legal perspectives. Where laws conflict, no law exists.

Wouldn’t it be better to say, the Geneva Conventions will apply ONLY between the signatory states. And anything goes in conflicts where one or both parties have not signed the Geneva Conventions.

This still does not address the Lebanese situation. In that instance you have a state (Lebanon) both unwilling and unable to suppress and control a non-state entity (Hezbollah – mostly Lebanese citizens). It seems proper that the diplomatic process works here as long as the NSE does not provoke any other country. However an un-restrained war should be available at the first instance where the NSE violates the sovereignty of another country. No Geneva Conventions should apply in the “cancer within” scenario. I think the host country has an imperative to resolve its cancer (the NSE) BEFORE these bad guys impact another country.

To me this means that the host country has decided to turn its territory into a lawless zone. Meaning that a wronged country can elect to invade, violate any and all laws. Kill whomever they choose. Torture whomever they choose. Without regard to proportionally, and without regard to the impact on innocent civilians. It sounds draconian, but I bet it would quickly encourgae a populous and government to take the threat of a NSE seriously and remedy the situation with extreem urgency.

People talk about who won or lost the Lebanese war. I think Lebanon lost, their country was pounded to dust. Their people were impacted the worst. And I believe they deserved to loose, for 16 years they did not actively seek to eliminate Hezbollah. Instead Lebanon allowed Hezbollah to grow and fortify. Sadly the toll of war illustrates the idiocy of the Lebanese policy.