Are Gitmo Detainees Entitled to the Same Legal Rights as US Citizens?

[ice109]

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.

 

[Vanadium 50]

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.

 

[Jimmy Snyder]

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.

Only US citizens have the same legal rights as US citizens.

 

[Dale]

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.

 

[D H]

can someone give me some legitimate arguments for why detainees at gitmo shouldn't have the same legal right as us citizens?

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"; http://openjurist.org/630/f2d/876/filartiga-v-pena-irala" ), but not much else.

 

[LowlyPion]

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:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.

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.

 

[NeoDevin]

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.

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.

See, it doesn't specify who's invading who in the quote you provided.

 

[TheStatutoryApe]

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.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

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?

 

[Vanadium 50]

And I think that the bill of rights was generally considered basic rights that all people should have.

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.

 

[BobG]

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?

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.

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.

 

[mheslep]

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...

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.

 

[BobG]

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.

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.

 

[mheslep]

...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.

Exactly.

 

[CaptainQuasar]

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 possesses 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.

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[Proton Soup]

there's a different process for citizens. and another one for military personnel.

 

[russ_watters]

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.

 

[CaptainQuasar]

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.

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.

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[TheStatutoryApe]

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 possesses 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.

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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.

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.

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.

 

[russ_watters]

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.

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.

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.

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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.

 

[Vanadium 50]

There's law to detain them under but not a process of law to examine the reasons for which they're detained?

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.

 

[russ_watters]

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.

Can you provide an argument as to why that should be true? If this is it:

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.

Considering that a lot of people are still getting killed over there, that is a tough one to accept.

But certainly, US law never applied to such people (see my example in the previous post), so it is unreasonable to require a trial under US law. Let me give you another example:

A guy is arrested in New Jersey and is found to be wanted for a murder in California. Between his capture and his extradition hearing, the government of California falls (if only!). The new governent of California doesn't want him. What can New Jersey do with him?

You guys are talking in lofty, generic, high sounding principles, when the reality of the situtation requires that you be specific. It isn't simple enough to deal with in such a way.

 

[CaptainQuasar]

Where are these guys going to get repatriated to at the end of the "war"? Obviously not to Afghanistan or Iraq - those are not nations who we are at war with. And obviously not to the Taliban government nor the Baathist government of Saddam Hussein - those governments did not have the legal right to rule in those countries or it would have been illegal for the U.S. to have ejected them from power.

A guy is arrested in New Jersey and is found to be wanted for a murder in California. Between his capture and his extradition hearing, the government of California falls (if only!). The new governent of California doesn't want him. What can New Jersey do with him?

Certainly not hold him for three years and then say "oops, we made a mistake" and let him go pretending that nothing happened, with no official explanation of why he was ever detained! Nor hold him perpetually without having to justify his detention. A simple solution would be for a New Jersey court to try him under the laws of California that existed at the time of his capture.

You guys are talking in lofty, generic, high sounding principles,

And you aren't? "They exist outside the law"...

The idea that everyone has fundamental rights and that a nation must be governed by the rule of law and without transgressing those rights is not some boutique liberal concern, it's an integral part of the American Way. Not to mention agreed upon by most of the people in the world in general.

when the reality of the situtation requires that you be specific. It isn't simple enough to deal with in such a way.

Oh, give me a break. Telling someone why they are a prisoner - even if the answer is either "you have committed a crime" or "you are a prisoner of war" - in less than four or five years is not something the U.S. government is prevented from doing because it's an insanely complicated measure. Being specific is exactly what the Bush administration has avoided doing at all costs.

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[mgb_phys]

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.

At the end of WWII captured German POWs were reclassified as "disarmed enemy forces" to avoid the Geneva convention and used as slave labour, particularly in France where they were used to clear minefields.

 

[russ_watters]

A simple solution would be for a New Jersey court to try him under the laws of California that existed at the time of his capture.

You are suggesting that we adopt the laws of the Taliban for the purpose of trying our prisoners captured in Afghanistan in 2002. That's absurd.

And you didn't answer the question of what to do with them if we decide not to hold them - that's the more difficult one. It's easy to say what you think we can't do, but if you can't provide a solution, you haven't helped anything.

And you aren't? "They exist outside the law"...

The idea that everyone has fundamental rights and that a nation must be governed by the rule of law and without transgressing those rights is not some boutique liberal concern, it's an integral part of the American Way. Not to mention agreed upon by most of the people in the world in general.

That they exist outside the law is a practical reality. It's just plain true. I doubt you'll find any legal system in the world that is set up to adopt the laws of another country for the purpose of a trial. That just plain isn't how it works. Your position contains no realistic provisions for implimentation. Heck, you're not answering some of the more important questions here! Like what rights and what to do with them if they are to be released. These are very complicated problems that you are simply whitewashing!

Oh, give me a break. Telling someone why they are a prisoner - even if the answer is either "you have committed a crime" or "you are a prisoner of war" - in less than four or five years is not something the U.S. government is prevented from doing because it's an insanely complicated measure. Being specific is exactly what the Bush administration has avoided doing at all costs.

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First off, the status of the prisoners has been reviewed and I would venture to say that they all know why they are there. This picture you paint of people locked up and forgotten about is not how it is working.

Regardless, though, if dealing with them is so simple, then answer the questions I posed.

 

[russ_watters]

Highlighting the problem I mentioned before that is being ignored here:

More than a fifth of the approximately 385 prisoners at Guantanamo Bay, Cuba, have been cleared for release but may have to wait months or years for their freedom because U.S. officials are finding it increasingly difficult to line up places to send them, according to Bush administration officials and defense lawyers.

http://www.washingtonpost.com/wp-dyn/content/article/2007/04/28/AR2007042801145_pf.html

 

[CaptainQuasar]

You are suggesting that we adopt the laws of the Taliban for the purpose of trying our prisoners captured in Afghanistan in 2002. That's absurd.

Well, no, I didn't suggest that, I simply answered your contrived dilemma about the captured murderer in New Jersey, but why the hell would you object to it? Do you think the punishments proscribed under the laws of the Taliban would not be harsh enough or something?

And you didn't answer the question of what to do with them if we decide not to hold them - that's the more difficult one. It's easy to say what you think we can't do, but if you can't provide a solution, you haven't helped anything.

Looking back up the list I don't see you asking that question... wait, are you talking about that multiple-choice thing? You seriously expected me to take that as anything other than a false dichotomy?

If the reason those guys were detained is because they committed a crime, they should be told so and it should be explained to them what crime they have committed.

If they were detained because they're prisoners of war, they should be told so and treated as prisoners of war. They can't just be set free willy-nilly with no explanation the way the administration has been doing.

That they exist outside the law is a practical reality. It's just plain true.

Uh, no. That's a lofty, generic, high-sounding principle that you're attempting to pretend is true by repeating it again and again emphatically.

I doubt you'll find any legal system in the world that is set up to adopt the laws of another country for the purpose of a trial. That just plain isn't how it works.

You just completely and baldfacedly made that up. During the British Empire in the colonies there were trials that would use British law instead of local law all the time and this has evolved into "http://books.google.com/books?id=S6bBK1XO6MgC&printsec=frontcover#PPA1,M1"" or "private international law". Courts all over the world call experts to testify about foreign law and adjudicate based on foreign law all the time.

But again, in any case, I'd be perfectly fine with it if they were tried under any actual legal system instead of the "secret evidence, unlimited detention" system tailor-made by the Bush administration to achieve their political objectives.

Your position contains no realistic provisions for implimentation.

Yeah, "tell them why they were detained." So unrealistic.

First off, the status of the prisoners has been reviewed and I would venture to say that they all know why they are there.

Except for the ones who were released without comment after a few years. They never get to find out why they lost a few years of their life.

It's like you're reading a White House press release. Their status has been "reviewed", in that they've been told in military courts where evidence they're not allowed to see is presented that they're "unlawful combatants", people who have done something wrong in such a way that their treatment is governed by no existing civil, military, or international law system?

You're right, what a complicated dilemma, no one could ever imagine any possible way in which this might be handled differently.

I will also point out that the only reason that even the secret evidence trials occurred is because the petitions to the Supreme Court were coming down the line.

This picture you paint of people locked up and forgotten about is not how it is working.

No, they're just imprisoned for years without being allowed to know the charges against them, like they're characters in a book by Kafka or something. Y'know, Franz Kafka, the guy who was a Jew in Germany during the decades leading up to the Holocaust. He was pretty good at describing autocracy and oppression and the antithesis of freedom and the American Way.

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[CaptainQuasar]

Highlighting the problem I mentioned before that is being ignored here: http://www.washingtonpost.com/wp-dyn/content/article/2007/04/28/AR2007042801145_pf.html

"We're to keep you in prison and can't put you back where we took you from, but all of this has followed the due process of law." I have a bridge to sell you

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[TheStatutoryApe]

Can you provide an argument as to why that should be true? If this is it: Considering that a lot of people are still getting killed over there, that is a tough one to accept.

Lots of people die every day in the county I live in. Paramilitary groups, generally referred to as gangs, use all manner of weapons and tactics to kill people and cops in the city streets on a fairly regular basis. Would you say that we can legally define LA county as being at war?
We are not at war with Iraq. The Iraq War is over. Can you point me to a legal definition of war where the country has been invaded, its leader tried and executed, and a new government put in place yet it is still at war?

But certainly, US law never applied to such people (see my example in the previous post), so it is unreasonable to require a trial under US law. Let me give you another example:

A guy is arrested in New Jersey and is found to be wanted for a murder in California. Between his capture and his extradition hearing, the government of California falls (if only!). The new governent of California doesn't want him. What can New Jersey do with him?

You guys are talking in lofty, generic, high sounding principles, when the reality of the situtation requires that you be specific. It isn't simple enough to deal with in such a way.

This scenario is excessively complicated. California is part of a larger nation and the authorities of that nation may wish to have the person tried. While a person is generally tried in the location where they commited their crime it is not necessary. Trial can be moved, even out of state, to another court. How that works exactly I am not sure but I know that it happens.
On the other hand if charges were brought by CA authorities and evidence collected by CA authorities and now all of that has evaporated, there is no longer anyone charging him or in possession of evidence against him, then he can not be legally detained. The police and DA will likely do all they can to detain him for what ever reasons they can think of in order to try to get the courts to try him but if there is no evidence they have no case and they are knowingly infringing on his rights by holding him. The police and DAs infringe on people's rights all the time. They just do it in such a small and mild manner that it is hardly worth doing anything about unless it somehow turns out to have incredible consequences.

Highlighting the problem I mentioned before that is being ignored here:

Can you tell me why it is at all legal to keep persons who have apparently been found innocent detained simply because their country of origin does not want them? If they are innocent they should not be held in a prison. They are in US custody and they are now the USs responsibility. If their country will not take them they should be released here and given perhaps a provisional status as visitors until such time as something can be done with their situation.

 

[legalrights]

Much of the publicity surrounding the detention of suspected terrorists at the U.S. naval base in Guantanamo Bay, Cuba has focused on the question of whether the U.S. military uses torture as an interrogation technique. However, there are a number of other legal questions not related to the treatment of detainees, but instead concerning the question of whether the military has the authority to detain them at all, and if so, what rights they have to challenge their detention.
Who Can the U.S. Government Detain at Guantanamo Bay?

In the case Hamdi v. Rumsfeld, the Supreme Court held that the government has authority to detain enemy combatants for the duration of active hostilities in Afghanistan. Though Hamdi was a U.S. citizen, and the government was holding him on a navy brig, the same applies to the Guantanamo detainees. As long as a detainee is an enemy combatant, and as long as U.S. forces are actively fighting in Afghanistan, the government has the authority to detain that person.

An enemy combatant is someone under the command structure of the enemy during wartime. In this case, Congress authorized "necessary and appropriate force" against anyone involved with the 9/11 attacks in a piece of legislation known as the AUMF. Under this authorization, Al Qaeda and the Taliban are our enemies, and so those under their command and control are considered enemy combatants. Detention is in turn a part of "necessary and appropriate force" against the enemy. The Court has used a number of factors to determine who is an enemy combatant – included are those who are part of the military wing of the enemy, those under its control, those present on the "battlefield" during hostilities, and those who took up arms against the United States.

apostille info

 

[WhoWee]

Just open the doors and set them free - in Cuba.

According to Michael Moore, and some of our Congressional leaders, Cuba is something of a paradise.

 

[russ_watters]

As long as you don't leave your resort hotel, it is!