President Bush has threatened to veto a defense appropriation bill being debated by the Senate IF the Senate includes an amendment which would RESTORE the CONSTITUTIONALLY GUARANTEED right of habeus corpus
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The silliness of an extraterritorial constitutiongravitron5September 22 2007, 03:43:51 UTC
Briefly, I think it's quite legitimate to distinguish between the application of habeas corpus to citizens on American soil; to aliens on American soil; to American citizens outside American soil; and to _aliens_ outside American soil. We can quibble about the first three categories, but I am severely disinclined to extend any constitutional rights to the fourth one. That the Constitution might have extraterritorial reach - and that persons not party to the Constitution's implied social contract might have access to the rights embodied therein - is utterly absurd, and makes for all sorts of strange quandaries if taken to its logical conclusion.
Regarding the Gitmo case...let us assume, arguendo, that constitutional rights _are_ available to aliens located on American military bases located upon foreign soil. Now consider the following situation: Enemy forces penetrate the perimeter of a base in [insert godforsaken foreign hellhole here], and are repelled with heavy losses on both sides. Whereupon, the families of some of the enemy KIA's sue the United States for violating the Fifth Amendment rights of those enemy personnel we killed during the attack. Extrajudicial killings: our troops clearly deprived those enemy soldiers of their lives without due process. And of course there'd be more lawsuits from wounded enemy POWs demanding habeas corpus rights.... In the aftermath of this "constitutional disaster" (as the media & legal commentators put it), JAG officers find themselves considering how the Fifth Amendment applies to minefields around American military bases. Or whether shoot to kill orders may still be constitutionally issued to sentries on the base perimeter.
I could go on: Must a counterinsurgency campaign be conducted using American search & seizure rules? Or shall Kim Jong Il obtain a temporary restraining order against the Eighth Army forbidding bombardment of his government's property absent a condemnation hearing? And what happens when hundreds of thousands of POWs taken in some future war start flooding our judicial system with habeas corpus petitions?
I do not argue that, absent access to US courts and the Bill of Rights, aliens abroad will not be subject to abuses at the hands of American civilian & military forces. But humanitarians concerned with the fate of such persons should note that there are other avenues for redress besides the courts. For example, there is a time-honored means of reining in Presidents & Congresses accused of malfeasance - a way that doesn't involve lawsuits & restraining orders. We call them "elections".
P.S. If you're interested in a contrarian POV, I touch on the habeas issue obliquely in this (somewhat rambling) essay:
Regarding the Gitmo case...let us assume, arguendo, that constitutional rights _are_ available to aliens located on American military bases located upon foreign soil. Now consider the following situation: Enemy forces penetrate the perimeter of a base in [insert godforsaken foreign hellhole here], and are repelled with heavy losses on both sides. Whereupon, the families of some of the enemy KIA's sue the United States for violating the Fifth Amendment rights of those enemy personnel we killed during the attack. Extrajudicial killings: our troops clearly deprived those enemy soldiers of their lives without due process. And of course there'd be more lawsuits from wounded enemy POWs demanding habeas corpus rights.... In the aftermath of this "constitutional disaster" (as the media & legal commentators put it), JAG officers find themselves considering how the Fifth Amendment applies to minefields around American military bases. Or whether shoot to kill orders may still be constitutionally issued to sentries on the base perimeter.
I could go on: Must a counterinsurgency campaign be conducted using American search & seizure rules? Or shall Kim Jong Il obtain a temporary restraining order against the Eighth Army forbidding bombardment of his government's property absent a condemnation hearing? And what happens when hundreds of thousands of POWs taken in some future war start flooding our judicial system with habeas corpus petitions?
I do not argue that, absent access to US courts and the Bill of Rights, aliens abroad will not be subject to abuses at the hands of American civilian & military forces. But humanitarians concerned with the fate of such persons should note that there are other avenues for redress besides the courts. For example, there is a time-honored means of reining in Presidents & Congresses accused of malfeasance - a way that doesn't involve lawsuits & restraining orders. We call them "elections".
P.S. If you're interested in a contrarian POV, I touch on the habeas issue obliquely in this (somewhat rambling) essay:
http://gravitron5.blogspot.com/2006/10/thoughts-on-preventive-detention.html
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