> Behalf Of Gautam Mukunda [snip]
> This > says, instead, that the moral code that we have adopted as a society, > enshrined in the Constitution, is superior to that of our enemies, and we > have the right to try them according to our standards. Nick: But we're not doing so. We're invoking special wartime standards. We are lowering our standards, as we have done before, yet it's not clear that the circumstances are parallel. It does seem like the right thing to do, but it should be done with utter clarity, not this muddiness that implies that foreigners have fewer rights because they are not U.S. citizens, which is what was said. After all, we hold our Constitutional rights to be self-evident, we believe they are based in a truth that transcends national borders. Me: Two things. First, these special wartime standards _are within the Constitution_. We're not violating it. The Framers understood that circumstances vary, so within the Constitution they gave the government the power to do things like suspend habeas corpus (something which the Bush Administration has, of course, not even contemplated). I honestly don't believe that we're lowering our standards at all. We are adopting different procedural forms of justice because of different circumstances - but the Constitution itself clearly envisages the government doing precisely that dependent on the circumstance. Second - foreigners _do_ have fewer rights in the view of the Constitution because they are not US citizens. The purpose of the American Constitution is to guarantee civil rights to American citizens. The preamble begins "We the People of the United States" not "We the People of the world." I hope that people in other countries have full civil rights, but it is not incumbent upon the American government that it treat them as if they have the same levels of Constitutional protection that American citizens receive. Foreign nationals in the United States have Constitutional protections almost on the level of those given to American citizens. But those outside the United States do not at all, which is perfectly reasonable, to my mind. > That the specific > _procedures_ we adopt are different in war and peace, and > different for our > citizens and non-citizens who have taken up arms against us, is > not morally > relative - it's nothing more than common sense. Nick: I think you misunderstand what I'm questioning. It's not that there's something wrong with applying different standards in different circumstances. That is, as you say, appropriate. Cheney: "They don't deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process..." That's a hell of different argument than "A nation in our situation has no choice but to do things differently, as we have done during wartime in the past." Ashcroft: "Foreign terrorists... in my judgement, are not entitled to and do not deserve the protections of the American Constitution..." Clearly, American terrorists do, however. Again, a far cry from what *should* be the issue, the needs created by the present danger. Me: I think you misunderstand me - I'm saying that American citizens and foreigners are in different circumstances Constitutionally. Ashcroft is _right_ - foreign terrorists are not entitled to what we normally think of as Constitutional protections. Those captured outside American territory get none. Those captured inside the US get Constitutional protections, absolutely, but those aren't necessarily what we think they are - I think that's what Ashcroft was trying to convey. They have no right to a civilian trial, for example - trying them before military tribunals is well within the Constitution. According to Quirin, the government has the right to try American citizens before military tribunals. The Bush Administration, in its executive order, has actually asked for less than what it is entitled to - correctly, in my opinion, as while I agree with Quirin's interpretation, I would only agree with actually conducting such tribunals for American citizens in the most exceptional of circumstances. > The procedures of justice > might be different from time to time and place to place - _but civilian > courts do not have a monopoly on justice_. Nick: There you go -- that's exactly what the kind of language they should be using, not the jingoistic rhetoric about foreigners -- if only for the sake of international relations. If we're not seen as standing up for equal rights (which occasionally have to change due to circumstances) for all human beings, regardless of nationality, then we have abandoned the Consitution and any claim to moral high ground. I think they're doing what needs to be done, but they're defending it wrongly. Nick Me: I guess this is where we fundamentally disagree. First, it is not true that failing to stand up for equal rights for all human beings means abandoning the Constitution - there is absolutely no Constitutional obligation to do any such thing. The government may do so or not, as it deems wise. The Constitution guarantees equal rights only to American citizens, and has been interpreted to guarantee almost equal rights to non-citizens living in the United States, but it grants no rights _at all_ to non-citizens not living in the United States. Now, I _believe_ that every human being should have civil rights roughly equivalent to those enshrined in the American Constitution, and I believe that the American government should make some efforts to help ensure this, balanced always against the realities of our power-based national interests in an anarchic world. But there isn't a word in the Constitution that can be interpreted to make that an affirmative demand upon the American government. Second, I think that not standing up for equal rights for every person on the planet means abandoning the moral high ground is absurd. We haven't crashed airliners filled with innocent people into buildings filled with innocent people. I get accused of black and white thinking, but this is about as black and white as I could imagine - we're either perfect (judged by a standard which I think reasonable people could argue isn't even one we should aspire to) or we don't have any moral advantage over barbarians like the Taliban and Al Q'eda. You can't possibly believe that. We should try to be as good as we possibly can - and it seems to me that you and I actually _agree_ on what we should do - but I can't imagine _any_ actions that would be undertaken by the American government that would deny us the moral high ground over enemies like the ones we are now facing. Let me see if I can summarize clearly: I think that the Bush Administration has requested the power to try foreign nationals, whether they are captured here in the United States, in Afghanistan, or in some yet-to-be-specified third country, before military tribunals. They are doing so because they believe that normal civilian trials would impose a series of difficulties that are obvious to all of us. They justify it by saying that foreign nationals - particularly those classified under the Geneva conventions as "illegal combatants" - do not have the same level of Constitutional protections as those accorded to all American citizens, regardless of their specific actions. I agree with all of these beliefs on their part. If I understand you correctly, you agree that they should use military tribunals, but feel that they should not justify it by arguing that foreign nationals do not receive the same level of protection that American citizens receive under the Constitution. Instead you think they should argue that they have simply changed the mechanism of justice due to exigent circumstances. Under Quirin, the government can, in fact, have the ability to try American citizens before military tribunals during times of war, but the Administration has chosen not to exercise that power. I think that it was wise to do that. I believe that there is nothing in the Constitution that demands that the United States government extend to foreign nationals protections equivalent to those given to members of the American body politic, and that it can choose to do so (or not do so) based on its own judgments of the best interests of the United States. Given that, the American government has no moral obligation to try foreign combatants against the United States as if they were domestic terrorists, or, for that matter, normal domestic criminals. They are fundamentally different in a variety of ways, which places them in a different legal category - therefore we are morally justified in treating them differently, as by doing so we still operate within the social contract that governs American society and the actions of the American government. Gautam
