News GITMO detainees and Obama's promise

[brainstorm]

First, using the term 'oppress' regarding an act of self-defense which resulted in captured soldiers who were attacking the colonies is to abuse the term.

My point is that it shouldn't matter whether the colonists were viewed as legitimate in their claims of independence or criminal rebels engaged in insurgency against the legitimate sovereign, the British crown. The reason it should not matter is that the constitution is a document that limits governmental power while at the same time allowing the exercise of power by free agents. So, theoretically, anyone who wishes to exercise power or freedom from it should be able to do so within the ideology of republic. Any "state," including "nation states," globally should at least in theory be able to make reference to the US constitution in defining political representation and checks and balances and any individual should be able to make claims to rights. In other words, the US constitution is not a unique operating system for a particular government - it is a general universal document explaining the rights and freedoms of human life. If people choose to deny the validity of the constitution, it's surely their right and within their power, but the rights enumerated are themselves inalienable (i.e. they are natural rights that come from a power beyond human power, whatever that "nature" may be). I don't understand why people deny this aspect of the constitution. Is it because suppression or denial of natural rights offers opportunities to manipulate people to a greater extent than if natural human rights/powers are recognized?

 

[mheslep]

So, theoretically, anyone who wishes to exercise power or freedom from it should be able to do so within the ideology of republic...

The Declaration didn't mean anyone and everyone, at all times, in an absolute sense. There are caveats. Without digging into Locke, surely you can see that, for example, out of self-defense you are entitled to protect yourself from someone breaking into your home even though you might surely deprive the intruder of rights, even his life?

 

[SW VandeCarr]

I agree with your above statements, with the additional caveat that I think that "criminals" is the right designation for most rather than POWs.

It's not clear to me why you take this view. Nearly all the of the original set of detainees were turned over to US forces by the Northern Alliance in the early fighting. I don't understand why you would assume "criminals" would be the right designation without knowing whether the present lot are mostly non-Afghans and therefore more likely to be al-Qaida operatives or supporters. In any case, at most they could be considered as suspects until they are charged. If they are charged, they become defendants as per the USSC ruling. They become criminals if and when they are convicted.

Earlier, you seemed to categorically oppose the POW designation on general principles.

 

[mheslep]

Locke, 2nd Treatise. War by its nature takes away the appeal to a lawful body governing both parties. Without that appeal, the rights otherwise guaranteed (but not granted) by a lawful body are set aside.

19. This is the plain difference between the state of nature and the state of war. Some men -- notably Hobbes -- have treated them as the same; but in fact they are as distant from one another as a state of peace, good will, mutual assistance and preservation is distant from a state of enmity, malice, violence and mutual destruction. A state of nature, properly understood, involves

men living together according to reason, with no-one on Earth who stands above them both and has authority to judge between them​

Whereas in a state of war

a man uses or declares his intention to use force against another man, with no-one on Earth to whom the other can appeal for relief.​

It is the lack of such an appeal that gives a man the right of war against an aggressor, not only in a state of nature but even if they are both subjects in a single society. [The rest of this section expands on Locke’s version in ways that ·dots· can’t easily
indicate.] If a thief has already stolen all that I am worth and is not a continuing threat to me, I may not harm him except through an appeal to the law. But if he is now setting on me to rob me—even if it’s just my horse or my coat that he is after—I may kill him. There is the law, which was made for my protection, but there is no time for it to intervene to save me from losing my goods and perhaps losing my life (and if I lose that there is no reparation). Furthermore, it is the thief’s fault that there is no time for an appeal to the judge that stands over him and me—namely, the law—and so I am allowed to make my own defence, and to be at war with the thief and to kill him if I can. What puts men into a state of nature is the lack of a common judge who has authority; the use of unlawful force against a man’s person creates a state of war, whether or not there is a common judge and (therefore) whether or not they are in a state of nature.

http://www.constitution.org/jl/2ndtr03.htm

 

[CRGreathouse]

It's not clear to me why you take this view. Nearly all the of the original set of detainees were turned over to US forces by the Northern Alliance in the early fighting. I don't understand why you would assume "criminals" would be the right designation without knowing whether the present lot are mostly non-Afghans and therefore more likely to be al-Qaida operatives or supporters.

I assume they are composed of just those you suspect they are. I don't assume that "criminal" is the right designation in the absence of this information.

In any case, at most they could be considered as suspects until they are charged. If they are charged, they become defendants as per the USSC ruling. They become criminals if and when they are convicted.

Of course you're right here. I'm using shorthand -- I mean that they are to be treated by the usual criminal process, not that we are to assume without evidence that they are criminals.

Earlier, you seemed to categorically oppose the POW designation on general principles.

My feelings have not changed since the earlier discussion, or indeed over the last year. The repatriation requirement convinced me that the POW designation was not the right one.

 

[mugaliens]

Why? Why does the concept of a "day in court" even apply?

Yes, actually, it does, and this ideal forms the foundation of both law and order in most civilized countries today. There are obviously some situations where it is superceded by the immediate need to protect one's life and property, such as when someone kicks you front door in, as has happened to two friends of mine. Even then, however, the rule of law, at least in the state in which I live, allows certain, rather deadly actions in response.

When an individual has been detained alive, however, both U.S. and International law apply with respect to their treatment from that point on, the same as if, after kicking in my door, a criminal throws his hands up in the air in surrender. Although technically I could still shoot him and get away with it, I am morally and legally bound to allow the process of law to run its course.

 

[mheslep]

The analogy is more correctly put between home invasion and war as, the criminal law does not apply to the suspects during the home invasion, and criminal law does not apply to captives of other nations during the war. A more useful focus to my mind: defining the limits the time and place of the declared war, so that then criminal law become sovereign again.

 

[mugaliens]

The analogy is more correctly put between home invasion and war as, the criminal law does not apply to the suspects during the home invasion, and criminal law does not apply to captives of other nations during the war. A more useful focus to my mind: defining the limits the time and place of the declared war, so that then criminal law become sovereign again.

I believe I mentioned "U.S. and International law," which encompasses both criminal law, as well as military law and widely recognized law with respect to armed forces.

Even though a country might declare the cessation of armed hostilities, this doesn't mean that the occupied country's criminal law instantly takes over. Both military and international law remain in effect.