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Gitmo detainees legal rights?

  1. Nov 11, 2008 #1
    can someone give me some legitimate arguments for why detainees at gitmo shouldn't have the same legal right as us citizens? to me these like basic rights but i think i'm missing something.
     
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  3. Nov 11, 2008 #2

    Vanadium 50

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    Before anyone can answer your question, you have to specify which legal rights. For example, unlike US citizens they don't have the right to vote, but I doubt anyone seriously thinks they should.

    It would help a bit if you were to add why you thought they would have a particular right, especially if you could specify which group they belonged to that would confer that right.
     
  4. Nov 11, 2008 #3
    Only US citizens have the same legal rights as US citizens.
     
  5. Nov 11, 2008 #4

    Dale

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    Since they are not US citizens they do not have the rights of US citizens protected by the US Constitution. Also, since they are not uniformed soldiers they do not have the rights of uniformed soldiers protected by the Geneva Conventions.

    I don't know if there is some US legal document that defines human rights, but if there is one then since they are humans they would have the rights of humans protected by such a document.
     
    Last edited: Nov 11, 2008
  6. Nov 11, 2008 #5

    D H

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    The detainees have the same minimal set of rights conferred to pirates, slave traders, and others classified as hostis humani generis ("enemies of mankind"). They have a right not to be tortured (torturers are being viewed more and more as a "enemies of mankind"; 630 F.2d 876 (2d Cir. 1980) for example), habeas corpus (Boumediene v. Bush, 553 U.S. ___ (2008)), but not much else.
     
  7. Nov 11, 2008 #6

    LowlyPion

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    Regardless of the issue of Jurisdiction there is the more troubling issue of how they got there.

    What distinguishes any of them from being sent to Russian Gulags for political incorrectness? Without review of their cases and causes, the suspension of habeas corpus should be troubling to any citizen, whether or not it's non citizens that are under the yoke.

    The suspension clause of The Constitution directs:
    It is not at all clear that the detainees at Guantanamo - plucked from foreign countries as a part of our own invasions meet the threshold of suspension that the Bush-Cheney Administration would claim.
     
  8. Nov 11, 2008 #7
    See, it doesn't specify who's invading who in the quote you provided. :wink:
     
  9. Nov 13, 2008 #8
    And I think that the bill of rights was generally considered basic rights that all people should have. So if all men are created equal, a truth that is apparently self evident, what does it matter if a person is a citizen or not to whether they are capable of having these rights applied to them?
     
  10. Nov 13, 2008 #9

    Vanadium 50

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    I don't think that's quite right. First, until the 14th Amendment, there was no requirement that the States enforce these rights. Second, many of these "rights" were in fact not individual rights but restrictions on the federal government. It doesn't say that individuals have an unrestricted freedom of speech - it says Congress can pass no law abridging this freedom. Many of these rights are not rights at all - consider the 27th amendment (one of the original BoR amendments, not passed until 1992): it says Congress cannot grant itself a raise.
     
  11. Nov 13, 2008 #10

    BobG

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    When it comes to the reasoning behind the first 10 amendments, StatutoryApe is correct - which is one reason two of the amendments weren't approved at the time(including the 27th Amendment). The door was opening beyond the intended scope.

    Vanadium is parsing the legal language used in the amendments instead of looking at the motivation that initiated the amendments.

    Traditionally, even though the Bill of Rights only applies to American citizens, those rights have been applied to non-citizens as well in respect to the motivation behind the amendments - with exceptions for war time, such as forced relocation of Japanese Americans during wartime (And it was forced relocation, not forced confinement - the camps were a practical concession to the fact that you can't relocate that many people when they have no place to go. The same policy was applied to German Americans on the East coast with the difference being most German Americans could relocate near family further inland.)

    There's no problem detaining combatants at Gitmo during war time; even the ones that aren't guilty of any war crimes (other than not owning a uniform). Defining the war and how long the detention will last is the problem (as is some of the treatment of the detainees). The "war" ended very quickly in both Afghanistan and Iraq. Both are in the reconstruction/peacekeeping stage. Unfortunately, the reconstruction/peacekeeping stage looks so much like war that sending them back isn't a good option.

    For the routine cases of combatants fighting a war, they're not true war criminals any more than US contractor security personnel in Iraq.

    And even if accused war criminals aren't tried in a US court, whatever court tries them has to follow pretty much the same standards, as just about any international war crimes court will.
     
  12. Nov 13, 2008 #11

    mheslep

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    Not at all. Based on the writings of the Founders, Vanadium is entirely correct. As constitutional scholars like the Pres elect are fond of saying, the constitution and BoR provide 'negative liberties', that is, it is chiefly concerned with articulating that which the government shall not do, and wisely so. The liberty aspects of the Federalist Papers are almost entirely about whether or not the federal government was adequately restrained. In the constitution, the rights of the individual only appear 'negatively'; look to Jefferson's Declaration for articulation of individual rights.
     
  13. Nov 13, 2008 #12

    BobG

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    Then maybe I misinterpreted what Vanadium meant. It still sounds like you and Vanadium are putting more emphasis on how the BoR was worded than on the rationale behind the wording.

    The government can't give these rights to the individual because these are inalienable rights that the people (all people) already have (which is why they weren't addressed in the Constitution on first go round). Any rights the government gives the people can also be taken away by the government. Hence, the 'negative liberties' ensuring the government doesn't infringe on rights already belonging to individuals regardless of what government they live under.
     
  14. Nov 13, 2008 #13

    mheslep

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    Exactly.
     
  15. Nov 13, 2008 #14
    So, by that passage of BobG's you just resoundingly agreed with, the "negative liberty" stated in the seventh amendment saying "No person shall... be deprived of life, liberty, or property, without due process of law;" means that all people possess rights to life, liberty, and property that must not be infringed without due process of law regardless of what government they live under, right?

    It certainly seems that the guys at Gitmo, particularly the ones who were captured, held for several years, and then released with no comment, were deprived of liberty without due process of law - with no process of law, in fact.

    I definitely agree with jimmy's statement at the top that they aren't going to have the same rights as U.S. citizens. Just common human rights, which I think are mixed in with rights granted by the U.S. government in the Bill of Rights.
     
  16. Nov 13, 2008 #15
    there's a different process for citizens. and another one for military personnel.
     
  17. Nov 13, 2008 #16

    russ_watters

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    The basic problem with that, CQ, is that they exist outside the law. American laws are for American citizens and for enforcement on American soil, so there is no law to "process" them under. That's what treaties such as the Geneva Conventions are for. And they may be similar to laws, but they don't contain provisions for a trial, nor should they.
     
  18. Nov 13, 2008 #17
    There's law to detain them under but not a process of law to examine the reasons for which they're detained? Sounds like a flourish of sophistry to me. There are international courts, like where Slobodan Milošević was tried.

    Not to mention - what you're saying is that if someone happens to not fall under any jurisdiction then *poof* their right to liberty, which according to BobG and mheslep is something that exists without being granted by the U.S. government which the 7th amendment avoids infringing upon, disappears somehow.
     
    Last edited: Nov 13, 2008
  19. Nov 14, 2008 #18
    The president reserves the right to suspend habeas corpus in certain situations. And the issue arises that, since the Iraq war (the actual battle) is over, can we allow the president to invoke this right based on such a vague notion as a "War on Terror". Personally I would say no. And I don't believe his daddy ever held any drug dealers as enemy combatants either.

    If the US has any right to detain them currently then the US should be able to try them under US law. If US laws can not be applied to them then the US has no right to detain them and they ought be released to anyone who does have authority to handle them, or on their own recognizance.
     
  20. Nov 14, 2008 #19

    russ_watters

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    Try them for what? Though I'm sure some of them could be charged with war crimes, I suspect most of them could not. That makes their status little more than that of POWs. Regular POWs didn't commit any crimes and so don't get a trial.
    That's not what I said at all. Read it again. One can only get a trial in a jurisdiction that applies. But that doesn't mean they shouldn't be treated with certain level of human dignity. Again, you didn't specify what liberties you were talking about - certainly not all those in the Bill of Rights apply to their status. For example, for any prisoner, freedom of speech, assembly, and search/siezure are severely curtailed.

    Remember, most of these guys were captured from Iraq and Afghanistan. Iraq is starting to become stable, so their terms of capture are changing (where to draw the line is tough in this situation), but those captured in Afghanistan could at best be considered POWs. And it is perfectly acceptable to hold POWs indefinitely while a state of war exists. There is no trial called for in such circumstances. And just fyi, if you didn't already know it, it isn't like these guys have just been locked-up and forgotten about. Their status does get reviewed and many have been released as their status has been judged to be not worthy of imprisonment.

    Let me give you a specific hypothetical to chew on, though: A guy is caputured while firing a weapon at American troops in Afghanistan. What do you do with him? Do you:
    A. Hold him as a POW.
    B. Try him for murder (specify where and how).
    C. You should have killed him when you had the chance.
     
    Last edited: Nov 14, 2008
  21. Nov 14, 2008 #20

    Vanadium 50

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    Sure there is. If they were POW's, a category which grants them more rights than "unlawful combatants", they would have to be repatriated at the end of the war. The President-elect ran on a platform of ending the war, so clearly even the opposition party believes that the war is still going on.

    The decision on whether POW status is given or not comes from a "competent tribunal". (Not an "independent tribunal") The Military Commissions Act of 2006 effectively provides the latest definition of this in the US.
     
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