Can We Agree on the Meaning of the Bill of Rights in Wartime?

Vanity ^ | December 4, 2001 | self

[betty boop]

Lately, a whole lot of people around here seem to be exercised over the issue of whether the Constitution applies to "citizens only," or to the more generic category, "people." Must have been something President Bush or Attorney General Ashcroft said….

Well, I offered the result of my humble attempt at rational analysis, with the amusing result (hey, even I find it funny) of being screamed at and chastised, in 36-point type, for my dim-witted ignorance; and was in so many words accused of being a dunderhead, a horse's patoot, a "dunce." (Hey, maybe it's all true. :^) )

But I wasn't the only one to receive what passes for "civil treatment" in the now-typical style of FR discourse. An unfortunate colleague was taken to task for reaching conclusions similar to mine. He was accused of being a "cretin with an IQ of dog slobber," someone so dim he couldn't even "tell what planet [he] was on." Then the unkindest cut of all: "It wouldn't be fair to hold you to the same standards I would somebody half as smart as Al Gore."

Oh, pul-eeze. Can't we find a more dignified way to disagree with one another?

By the way, the folks advancing these judgments are of the party maintaining that unalienable human rights pertain to persons, not to citizens as such. What these seemingly crazed individuals fail to appreciate, however, is that I do not disagree with this conclusion. And neither, I suspect, does my much-abused colleague.

Still, there is the appearance of a preponderant majority of opinion on this question at FR, judging from the replies I've seen; and their collective finding contradicts the finding of the tiny dissenting opinion seemingly represented only by my colleague and me.

Now if majority opinion were all that's needed to establish truth, then we could all just go home now and get a good night's sleep. (If this "test of truth" satisfies you, dear reader, stop reading immediately and find something better to do with your life and time, because you're wasting both here.)

But I wouldn't be able to sleep at all, under such conditions. The idea that truth rests on majoritarian opinion is the very foundation of popular or mass democracy.

BUT -- our Founders gave us a republic. When the lady asked Benjamin Franklin what the Framers had wrought - in secret council - during that sweltering summer in Philadelphia, he replied: "A republic…if you can keep it." It seems to me there is no way you can keep a republic if your standard of truth is the Public Opinion Poll.

So may we return to the merits of the case, and let each person make his own judgment as he or she will?

One of my correspondents takes what I understand as a "negative reading" of the Bill of Rights ("BoR"). I don't disagree with him on this point: Clearly, the BoR operates as a constraint on the federal government, prohibiting it to interfere in certain areas of personal autonomy (which in the view of this writer, are certain divinely-constituted inalienable rights vested in all human persons qua persons, be they citizens of the United States or not) -- without due process of law.

I'm afraid we can't just dispense with the latter, this idea of "due process," just wish it away -- because it's fundamental to the concept of ordered liberty - which is what a constitutional republic is all about.

If I might digress for just a moment: This whole idea of God-given (or "innate" or "natural") human rights that governments are prohibited to violate is the distinctive, uniquely American contribution to the theory of just political order -- which is a very ancient problem.

This is an understanding wholly unprecedented in human history, in that Americans have actually tried to realize the theory in actual practice. This "theory" extends the idea of innate human liberty and personal sovereignty to all persons, everywhere. And the Americans have the sheer temerity to make precisely this insight the very foundation of their rule of law.

BUT - that is not the same thing as saying that the U.S. Constitution applies to anyone, living anywhere. It has been consciously, deliberately constituted by a specific people, for the benefit of a specific people. It is definitely not the same philosophy that has been adumbrated and "officialized" by the United Nations: Compare the U.S. Constitution with the U.N. Declaration of Human Rights. Then judge for yourself: Which of these rival conceptions most pertains to the way real human beings actually live their lives: In families, communities, states/provinces, and sovereign nations?

Or do people really live, after all, according to the U.N. stereotype: according to some "universal pattern" as conceived and sanctioned by some self-selected "expert class" in pursuit of high positions of (global) power and authority in a "blessed" institution - even if it means that the entire idea of national (not to mention personal) sovereignty must be crushed under the boot in order that their aims may be achieved?

No wonder dictators and would-be dictators alike loathe us - and are now trying to defeat us: They detest the unique American idea that American diplomats carry and defend before "the council of nations." I bet the U.N. especially hates that, as a challenge and rebuke to its own putative "authority"….

But this is the legacy we Americans historically have been trying, in times of peace, and doubly in times of war (when America is fatally threatened), to hand down to our children and successors. That is what the "American Experiment" (contra the French debacle in a similar attempt a couple hundred years ago) is all about. It must trouble the likes of Taliban, PRC, et al., to no end that Americans continue to resonate to precisely that understanding….)

But, given this most basic of uniquely American understandings, my friend in "the opposition," by arguing that the federal government is so stripped of power and authority by the BoR with respect to persons (be they citizens or non-citizens) that it is prohibited from exercising its constitutional authority, nay, its duty, to prosecute its own delegated powers in wartime, for the sake of the defense of the very people it represents, is a piece of reasoning I just don't get. Some very wise justice of the Supreme Court once said: "The Constitution is not a suicide pact." (Been trying to track down my source here, to no avail so far. Still searching….)

Then another person weighed in, and said that the Supreme Court held that during times of war, belligerents can be "disposed of by the Executive branch with no recourse to the Judicial branch…. The distinction is NOT between 'citizen' and 'non-citizen,' but between 'belligerents' and 'civilians.'" Then he noted that, before the Executive is allowed to do anything on its own authority (i.e., without recourse to the courts), Congress must first declare war.

To which I would reply: So true, my friend.

But exactly when did you expect that Tom Daschle, Harry Reid, Charles Schumer, Hillary Clinton, Barbara Boxer, Dianne Feinstein, Ted Kennedy, John Kerry, Chris Dodd, Evan Bayh, Jon Edwards, not to mention the What's-Her-Name senator from Missouri who got the job because her husband died in a plane crash (vastly aided by simply staggering voter fraud in the process) et al., would agree to "do the right thing for America" so to make such a declaration? (These people think their own sacred political futures depend on not playing along with Dubya. War to them is a mere inconvenience, not a reason to get really exercised. As long as "Plan A" still goes forward full-steam, they don't care about the little "inconveniences" that get in the way -- like full-scale, declared war on American soil with upwards of almost 5,000 civilians dead -- so far.)

A formal congressional declaration of war - that is, congressional acknowledgment of the mere state of facts in which the American people now finds itself and must LIVE through, now and for the foreseeable future -- seems to me to be the very least anyone can reasonably expect, nay, DEMAND, from their elected public officials.

If this crowd doesn't get it, then I think we Americans ought to fire the whole gang, and hire a whole new bunch - and in doing so (hopefully) manage to clarify the real, objective situation that United States now faces against implacable foes, foreign and domestic. Constitutionally speaking. (But don't hold your breath waiting for the answer, kids: These vermin give every indication of determination to stick around for the foreseeable future - and then some… They will be "our masters" YET. [If only in their dreams…].)

I just hope that the people who think they're upholding and defending the Constitution (even a constitution castrated by the radical individualists out there) acquire some "survival skills" sometime soon. And start acting like they really understand what is at stake in this war - a war implacably waged, without remorse, against "non-combatants" -- according to the taxonomy of my "friend in the opposition."

But it's late, and "beddy-bye time" for me right about now. I hope to hear from folks who have something to say on this subject soon. Thus to continue this discussion along lines relevant to all my correspondents, pro and con. (This is, after all, a public discussion, not a "tutorial.") Meanwhile, all my best to all - bb.

[2ndMostConservativeBrdMember]

Forgive me for interrupting your very important thoughts and profound wisdom, but we are in the midst of the most exciting fundraiser ever on FreeRepublic. I would hate for any of you to miss it!

Come visit us at Freepathon Holidays are Here Again: Let's Really Light Our Tree This Year - Thread 5

and be a part of something that is larger than all of us.

Alone, we are a voice crying in the wilderness. Together we are a force for positive action!

Don't be left out!

Be one who can someday say..................... "I was there when..................."

Thank you to everyone who has already come by and become a part!

[betty boop]

In your honor, sir.

[betty boop]

Well thank you very much; I'm sure the folks attending to this this thread will try to do what they can to stuff something up to relieve your crying-in-the-wilderness probblem. Thanks for the reminder RE: our civic duty. best, bb.

P.s.: you were so timely, 2ndMostConservativeBrdMmember. I didn't even get a chance to invite potential correspondents to this thread before you showed up. So, Praise "efficiency." (I guess that's what I'm supposed to do right about now....)

[betty boop]

Oh, just for the fun of it....

[onedoug]

Can we ever?

[betty boop]

Can we ever -- do what, onedoug? "I'm listening." :^) best, bb.

[onedoug]

Can We Agree on the Meaning of the Bill of Rights?....

[betty boop]

Yep, we can. So what's your angle?

[betty boop]

We're throwing aparty in your honor, Hope you can come. best, bb.

[betty boop]

Want to come out and play? best, bb.

[betty boop]

Just in case anyone feels like getting "practical"....

[onedoug]

I don't know. It sounds downright un-American to me, somehow.

I get as frustrated as anyone with the PC crowd, and the usurption by communists of the democrat party...and parts of the Republican for that matter. But I gotta say I think a fair amount of disagreement within American society - especially about its foundations - is still a good thing...though it could be disseminated a fair degree more evenly.

[Matsuidon]

bb:

Art3, Sec2. Cl.1 and Cl.3.United States Constitution proscribe judicial requirements, specifically Cl.3 "The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury."

[tpaine]

One of the last posts on the thread you 'honor' summed it up perfectly:

To: H.Akston

bin Laden has perpetrated an act of war on the United States, even at that, if he is brough to US soil, he will be tried, not summarily shot. He still has the right to due proccess.
As a suspect in the murder of thousands of citizens, he cannot buy a weapon, he has no Second Amendment rights, no suspected felon does.

The posters that have agreed with you, (to your original post), are wrong if their assumption is that the rights detailed in the Constitution, and the protection afforded by the BOR, apply only to citizens. If Willioam F. Buckley makes the same claim, he is wrong as well. He isn't omnipotent you know.

Here's your original rant:

"Bob Barr just said on Sam and Cokie's show that the Bill of Rights is part of the Constitution, and the Constitution covers "persons", not just citizens, and "the Bill of Rights applies to all persons on our soil."

That's about the most liberal thing I've ever heard. Doesn't he realize that the Bill of Rights and the Constitution clearly identifies who is covered by the words "WE THE PEOPLE OF THE UNITED STATES", and that not everyone on this soil is "OF THE UNITED STATES"? With Rights come responsibilities - does he want to extend American rights to people who don't pay American taxes?? American Privileges without American Responsibilities, MR. BARR? Representation from you without Taxation?

I'm not even sure that Indians are covered by the Bill of Rights, unless it's specifically stated so in some bilateral treaty.

Now, the way I read that is that you do not believe that the Bill of Rights applies to anyone who isn't an American citizen. You have been doing some serious backtracking these last few hundred posts, but it doesn't make you any less wrong, or look any less foolish.

Everything that Bob Barr said was absolutely correct. The Bill of Rights, as it has been pointed out to you to almost a nauseating degree on this thread, cover the government from infringing on the rights of people in general.

"Where in the world did you get the idea that I said America must have a different set of standards for each and every nation?"

Your post #454, where you made the statement that non-citizens on our soil, have whatever rights have been negotiated by treaties with their countries.

Barr isn't wrong, you are.

592 posted on 12/4/01 8:24 PM Pacific by Luis Gonzalez

[Delta 21]

To use one of my favorite quotations from Blazing Saddles - Gaa-lee Mr. Lamar, You use yer tungue pudyer than a twenty dollar whore!

No offence meant, just keeping things light.

A formal congressional declaration of war
- that is, congressional acknowledgment of the mere state of facts
in which the American people now finds itself and must LIVE through,
now and for the foreseeable future --
seems to me to be the very least anyone can reasonably expect, nay,
DEMAND,from their elected public officials.

The state of the elected representatives is sorely lacking to say the least! What exactly would it take to bring these public servants into servicing their public? A suitcase nuke detonated in yet another American City or National land mark? Perhaps a blood or nerve agent strategically released to actually create massive casualties instead of just test the veracity of the U.S.Postal System? What, you think they havent already thought of and planned to execute such plans?!?

My Commander-in-Chief, the Executive Branch, my fellow brothers in arms, and the (far fewer than Im scared to admit) dedicated patriots still left in this Great Nation are the only glimer of hope this country has right now. If you count yourself included in one of these categories. GOD BLESS YOU.

Delta 21

[Demidog]

It's pretty plain English. Read the Dred Scott case and tell me how you like the ramifications of deciding that non-citizens don't deserve due process.

Holding people indefinately is not my idea of due process.

[Luis Gonzalez]

Article 1, section9, clause 2, US Constitution--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.

The current situation may qualify as a situation where "public safety may require" that the writ be suspended.

[zog]

---your analysis of the fact that the founders both recognized the born with rights that are god granted, not man-granted, and also that we were the first nation to try and assert this into practice are correct. This latest in a series of wars/conflicts/police actions is yet another example of when the practice gets thrown away in favor of the tired and always ending in a disaster formula used in other nations past and present-the formula that the founders thought wouldn't work out in the long run. Well, unless fascism was the goal of this or that government. Maybe fascism isn't the correct word, but statism and authoritarianism are closer.

Most humans actually prefer to be told what to do, to "follow orders". Be it from a king, with the exaltation of the "royal" concept, or in the election of a royal-like ruling class. perhaps royal like in everything except that embarassing name, but it follows all the descriptions of royal, even to generational power wielding dynasties.

The concept of the people "ruling" themselves and hiring employees-not employers to serve as clerks and functionaries has been -once again- abandoned in favor of following a king's dictates.

Here's an example. In clintons first term of office, enough abuses were uncovered and discussed to have shown anyone who really bothered to look even past the most obvious surface level that he was in most classical definitions not only probably a traitor, but also just a "crook", plain brown wrapper crooked, really nothing unusual, just scale and style slightly different from most. During his first tenure, all his orders were followed, from top to bottom, in government, millions and millions followed them unhesitatingly, those aspects of government that he controlled ultimately. Now after the second election when he got re-elected, why is it so many continued to "follow orders" no matter what those orders were? It is completely understandable, and to be human, to see how many wished to see a change back to the better somehow, to wait until after the second election results were finalised, by renunciating his rule, but why was it that actually so few people didn't put country first and resign from their civilian positions, or resign from their commissioned positions? The answer is, most people put temporary personal comfort and security and excused demogaugery over any sense of national patriotism or doing what is right. Talk is cheap, actions actually cost folding money and personal effort and personal convictions that enter into national altrusim. His orders still got followed. Millions acted like he was their royal leader. Millions. Most in fact. Some much smaller numbers quit over principle, over their outrage and unease he instilled-BUT, most stayed in, 'followed orders" of someone and a group of ruling class regimists who were demonstrably by then a collection of "bad people", and inimicable to what this nation was about.. They consciously made a decision that their check was more important than the nation's security, and their fellow americans rights and BORN WITH priveleges.

I applaud and count as fellow thinking patriotic americans those who quit and refused to follow that persons and statist gangs' "orders" during that second term. The others, a vast number of people unfortunately, to me, sorry, no excuses, crooked traitor supporters by their very deeds of silence and aquiesence and 'following orders' up and down and sideways in the criminal cliques ordering around chains of command and control, no matter who they claim they voted for, what they currently expouse, how much they wave the flag, or how much they foment further goose stepping excuses on the internet.

Actions speak louder than words, our bill of rights is a statement of already occured "fact" that can only be taken away by force, fraud, or collusionary distraction, it has no need of interpretation if one can understand the american english used when it was written. It does not need black's-law legalese language translation. It was designed that way on purpose.

The bill of rights in it's entirety and common english language definitions exists in war time, peace time, and in between time. there is no time when it doesn't, no matter past precedent of abuses against it. Robbing a store is wrong, robbing a hundred stores and "establishing a precedent" does not make any further occurence of store robbing 'right". There is no need to suspend sections of it, or to re-interpret it. The founders made so that some provisions of our law may be changed, all but the enumerated born with rights, which are carved in stone, and may NOT EVER be changed by an governmental action, utterance, or elected or appointed or hired on person. there are zero exceptions granted, no matter the current reason, even if it seems somehow appropriate at the time. Any attempt is a defacto immediate occurrence of a traitorus act, it's a support of abusive authoritarianism over our concept of born with soverignty and human dignity, and should be denounced immediately, no matter the published 'reason" for such an attempt occuring.

There are no exceptions allowed, or should be sought by anyone who lays claim to understanding them, for any reason, at any time, and it matters not what excuse is given to even attempt it, let alone to implement or support such a change.

[Phaedrus]

Beautifully written, with depth, subtlety and yet clarity, a tribute to the idea that is America. If we all make the effort to understand and honor this idea (hey, being a citizen and maintaining a republic is not easy!), we will move again toward greatness. Beyond effort, it does require, though, a certain selflessness -- we must care about more than ourselves and our immediate gratifications. The form of a republic balances the individual's capacity to realize his/her potentials against the practical needs for borders and defense of the whole in an imperfect world. Because we are a republic we are also a beacon of hope to the rest of the world, but we will remain so only so long as we are true to the Founders' gift to us and their vision. We must both care and act and that, while not easy, buys our children's future.

[Luis Gonzalez]

Hugh didn't make the argument that the BoR didn't apply to people everywhere, he made the argument that it didn't apply to some people here.

This is the statement he acredited to Bob Barr:

""Bob Barr just said on Sam and Cokie's show that the Bill of Rights is part of the Constitution, and the Constitution covers "persons", not just citizens, and "the Bill of Rights applies to all persons on our soil."

Then, he went on with his rant: "That's about the most liberal thing I've ever heard. Doesn't he realize that the Bill of Rights and the Constitution clearly identifies who is covered by the words "WE THE PEOPLE OF THE UNITED STATES", and that not everyone on this soil is "OF THE UNITED STATES"? With Rights come responsibilities - does he want to extend American rights to people who don't pay American taxes?? American Privileges without American Responsibilities, MR. BARR? Representation from you without Taxation?

"I'm not even sure that Indians are covered by the Bill of Rights, unless it's specifically stated so in some bilateral treaty."

There is a LOT wrong with his statement.

Hugh needs to keep in mind that at the time the document was crafted, an awful lot of people where not "of the United States" by choice, many supported the Crown on the struggle just a few years before, still others (a great number of others) where foreign-born and newly arrived, the Framers considered them to be included in the BoR, they could purchase guns, get a trial by jury, and could practice religion freely.

To prove his point, Hugh makes the argument that Usama bin Laden does not have Second Amendment rights here in the US, well, for one thing, he's not here in the US. Secondly, he's the prime suspect in a mass murder, I don't believe that even a natural-born citizen of the US accused of a similar crime, would be allowed to purchase a gun while being sought out by the authorities in connection with the act. The commission of a felony may negate the civil rights of anyone, including a citizen, and they may have to forfeit Life, and/or Liberty as punishment.

There have been many, many cases of foreign nationals standing trial in the US for crimes committed while on our soil, right of due process for non-citizens is demonstrated there. The last case sensational enough to receive media coverage, was a British nanny accused of causing the deaths of her charges.

Simply stated, the BoR is part of the guidelines we use to regulate the interactions between the US government, and any persons on US soil.

And then, still in Hugh's rant, there is this little gem: "- does he (Barr) want to extend American rights to people who don't pay American taxes??"

Hugh may be advocating the sale of American Rights, pay the government, and get yourself some rights.

Hugh, no one that spends more than a day on US soil escapes paying taxes.

[CJ Wolf]

A bump to you Betty. I have asked for it before but now I DEMAND a declaration of war as well.

That said, they never listen to me at least, I am but a single vote with no lobby for them to take comfort in. IMHO, There are cowards in the house of representives and the senate, they look out for themselves above the people they 'serve'. For example Notice the extensive efforts to ensure the anthrax is removed from the offices in which they work. But yet still they do not take those same precaution with the post office...

[mrsmith]

Any 'belligerant', alien OR citizen, is subject to military law- not civil.

The main dispute ( with regards to alien rights) is who has the right to make the government convince a court that he is a belligerant,
what standard of evidence will be required of the government by the court,
and, (by some here) whether the government even has the right to treat one as a belligerant without a Declaration of War.

By saying he will limit his order to non-resident aliens ( the Military Order definitely needs to be amended to include this promise) Bush has respected Supreme Court rulings that, generally, recognize civil rights for aliens who have resided here a significant time AND established significant ties.

[general_re]

Some very wise justice of the Supreme Court once said: "The Constitution is not a suicide pact." (Been trying to track down my source here, to no avail so far. Still searching?.)

I'll save you some searching. It was Justice Goldberg, writing for the Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)

;)

[backup]

The Bush administration is a disciple of the "Third Way" style of politics.

In a nutshell, the "Third Way" (aka the Hegelian Dialectic) is a tool to manipulate public opinion by creating a totally bogus debate in which BOTH sides are actually favorable to the Government.

The military tribunal issue is a perfect example.

The Supreme Court -- in numerous cases -- sets forth in great detail the conditions under which they may be used. (For those of you not following along, we are not talking about the UCMJ-style military tribunals ... rather, the purely executive branch system described in Bush's EO.) The Supreme Court states that if the conditions are met, the Executive branch may convene military tribunals for beligerents -- citizen or not. If the conditions are not met, the Executive branch may do nothing to an individual without the authorization of the judicial branch -- citizen or not.

The TRUE debate should be:
A. Have the conditions been met for an invocation of military tribunals
VS.
b. Have the conditions NOT been met for an invocation of military tribunals.

Bush, Inc. would lose this debate without question. The case-law on the matter is clear; the conditions have not been met at all.

So, following "Third Way" tactics, Bush, Inc. creates a FALSE debate; and floods the airways with it. It goes like this:

a. Due process is guaranteed only to citizens on US soil.
vs.
b. Due process is guaranteed to everyone on US soil.

This is a meaningless debate -- it's a nonsensical question.

And, the Gov't doesn't care less what side the public comes down on. For, BOTH sides of this false debate presuppose that the conditions for military tribunals have been met and the condiitons for war have been met.

It's a bogus debate designed by Ashcroft to confuse the issue.

Bush is waging an illegal war, there are no belligerents other than the dead guys on the hijacked planes (that's right... the Taliban is NOT considered a beligerent. Defending your country from an illegal US invasion does not make one a belligerent.) There is no declaration of War. There is no national emergency.

Bush's actions are utterly illegal. And, I'm not going to waste time arguing whether therse illegal actions apply only to citizens or whether these illegal actions apply only to non-citizens. It's absurd.

It's no different than the recent budget debate... One side argued spending should increase 15%, the other side argued spending shoudl increase only 5%.

That's the Third Way at work.

And, this is more of the same.

Apparently it is very effective.

[betty boop]

I'd like to interject a couple more points here.

When the Supreme Court recently ruled unanimously that President Bush was not exceeding his executive powers in wartime, they may have had this precendent in mind -- Johnson v. Eisentrager, 1950 (repeated here from an earlier thread):

[David Kopel writes]: “After the surrender of Germany during World War II, some German soldiers in China aided the Japanese army, in the months that Japan continued to fight alone. The American army captured them, and tried them by court-martial in China as war criminals. The Germans argued that the trial violated their Fifth Amendment rights, and pointed out that the Fifth Amendment is not by its terms limited to American citizens.

“Justice Jackson’s majority opinion held that the Germans had no Fifth Amendment rights. He pointed out that if the Germans could invoke the Fifth Amendment, they could invoke the rest of the Bill of Rights. This would lead to the absurd result of American soldiers, in obedience to the Second Amendment, being forbidden to disarm the enemy:

‘If the Fifth Amendment confers its rights on all the world except Americans engaged in defending it, the same must be true of the companion civil- rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and “were-wolves” could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against “unreasonable” searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.’”

Due process refers essentially to criminal matters. Acts of war simply are not criminal matters.

One thing that no one seemed to pick up on, on that earlier thread, was the concern I expressed regarding "idealism" with respect to the acknowledgement of the inalienable rights of suspected terrorists in wartime. To conceive of such natural rights as "the universal rights of man" can be dangerous, IMHO. The on-going Revolution (started in France in 1789) loves to cry this rhetoric out loud; the U.N. uses this doctrine as an excuse to interfere with the sovereignty of nations. Please think the implications of this through. U.S. is the only country that guarantees such rights to its citizens as an expression of American national sovereignty. Undermining the national sovereignty in this regard may work to undermine the rights of Americans in the longer run.

Just some stray thoughts.... All my best to you all -- bb.

[betty boop]

Thank you kindly general_re; I've been going nutz looking for it! Thanks for the link, too. best, bb.

[tpaine]

One thing that no one seemed to pick up on, on that earlier thread, was the concern I expressed regarding "idealism" with respect to the acknowledgement of the inalienable rights of suspected terrorists in wartime. To conceive of such natural rights as "the universal rights of man" can be dangerous, IMHO. The on-going Revolution (started in France in 1789) loves to cry this rhetoric out loud; the U.N. uses this doctrine as an excuse to interfere with the sovereignty of nations. Please think the implications of this through. U.S. is the only country that guarantees such rights to its citizens as an expression of American national sovereignty. Undermining the national sovereignty in this regard may work to undermine the rights of Americans in the longer run.

---------------------------------------------

What are the dangers/implications, & how can they undermine our rights?

[Jefferson Adams]

Extremely well written, and absolutely correct. I wonder what the percentage is of FReepers (and others in What's Left of America) who have the slightest clue about what you speak?

Sigh... the founders certainly had no idea that the country they created would so quickly be populated by dumbed-down useful idiots.

[backup]

If I were able, I would abolish altogether the word "rights."

It is the source of endless confusion.

Our government does not "guarantee our rights".

Imainge you hired a gardener. You sent him to your backyard and tell him to pull up all the weeds in the garden. Only the weeds. Because he is a little dense, you also specifically say do NOT pull up my tomato plants.

Now, as the gardener is out there working, would you describe him as the "Guarantor of the Right to Grow Tomatoes"?

Of course not.

What would you think if the Gardner described himself as the "Protector" of your tomatoes? You'd laugh. Afterall, your tomatotes are doing just fine -- the only potential threat to them is this idiot gardener.

The Gardener is the US GOVERNMENT. Our relationship to it has zilch to do with "rights." Rather, we have given it a set of instructions. If it disregards those instructions, we fire it.

[Jefferson Adams]

The Bush administration is a disciple of the "Third Way" style of politics.

Yep.

And by the way, I do also need to note that I *do* believe that the Bill of Rights does apply to citizen and non-citizen alike. My only quibble with the article. Sorry I missed it before.

[cc2k]

Article 1, section9, clause 2, US Constitution--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.

The current situation may qualify as a situation where "public safety may require" that the writ be suspended.

I don't necessarily disagree with your premise. However, Article 1 deals with the powers of the Congress. Congress hasn't acted on any legislation to suspend habeus corpus. The Executive has unilaterally decided to hold people indefinitely. Find something in Article 2 that allows the executive to suspend habeus corpus without any action by the Congress.

The problem is inaction by the Congress to make these things completely legal. Congress hasn't declared war, though there's no denying that we're in a war. Congress hasn't acted to suspend habeus corpus, though there might be a pressing need where "public safety may require it.".

In short, Congress is not doing its job, mostly for political reasons. Because of this, the executive is overstepping it's authority and making law by declaration (executive orders). Then, the minority in the Congress complains about this.

Bring a declaration of war to a vote in the House and the Senate. Bring a bill authorizing the military tribunals to a vote in the House and Senate. Let the votes fall where they may, and let the executive execute and enforce the laws as written, not make up new laws as they go along.

[Jefferson Adams]

The Gardener is the US GOVERNMENT. Our relationship to it has zilch to do with "rights." Rather, we have given it a set of instructions. If it disregards those instructions, we fire it.

Alas, in a Constitutional Republic, such as this once was, you would be correct.

[Publius6961]

Thank you for that contribution.
Here is another one I saved a while back:

"The choice is not between liberty and order. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." - Justice Robert H. Jackson in a dissenting opinion on Terminiello v. Chicago

[Luis Gonzalez]

"Bush is waging an illegal war."

I disagree with you. This action has received congressional approval, it falls under the constitutionally mandated duty of the President as Commander in Chief, to repel attacks on the US, the president has declared a State of Emergency in light of the actions of 9/11, and the further real and imminent danger of further attacks. We (the US) is responding to an act of war, orchestrated by a multi-national organization that has openly declared war on us. President Bush may not be conducting a war in accordance to your ideas, but it is in no way, an illegal war in accordance to the War Powers Act of 1973.

[Luis Gonzalez]

----
THE CRITICS ARE WRONG:
Why President Bush's Decision To Bring Foreign Terrorists To Justice Before Military Tribunals Should Not Offend Civil Libertarians
By JOHN DEAN
----

Friday, Nov. 23, 2001

I have been surprised at the vehemence of critics' reactions to President Bush's proposed use of military tribunals to bring accused al-Qaeda terrorists to justice. It is not only that I support the use of tribunals – which I suggested in an earlier column might be the right solution. It is also that I believe the adamant critics of the tribunals are working under the wrong framework. While their concern for civil liberties is admirable (and I share it), it is also misplaced.

The critics suggest that the constitutional standards of our criminal justice system should be applied in a military proceeding for war criminals – but that makes little sense. Many of these critics earlier called for a military response to terrorism. Now they want to demilitarize it.

In effect, what the critics of military tribunals would have the President do is turn enemy belligerents over to civilian law enforcement authorities for prosecution. To do so, however, would not only be unprecedented, but would set a horrifically bad precedent.

America Is At War

Wars, including this war, are fought under well-understood rules. They don't include providing Miranda warnings when capturing an enemy, nor employing the legal niceties of the Federal Rules of Criminal Procedure when punishing them.

To take a clear example, Secretary of Defense Rumsfeld's current "take no prisoners" policy for the war in Afghanistan could get him a jail sentence if he were a police chief. But most people see it as an inevitable byproduct of our having limited numbers of Special Forces troops in Afghanistan, who are not equipped to handle POWs, and of the fact that we are dealing with Taliban and al-Qaeda members who have a suicide ethic and will take others with them if they can.

Congress has formally declared war only four times: in 1812 against Britain, in 1898 against Spain, and for both the First and Second World Wars. Nonetheless, the United States is engaged in the legal equivalent of a formally declared war, as it did in Korea, Vietnam and Kuwait.

Indeed, a war declaration would certainly have been made, in the days after September 11, had the enemy been known. As Senator John Breaux, a Democrat from Louisiana, noted, "you can't just go off and [formally] declare war when you don't know who you are declaring war against."

And while no declaration of war issued, Congress did authorize President Bush "to use all necessary force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." By doing so, Congress provided the legal and practical equivalent of a formal declaration of war.

House Judiciary Committee member and former U.S. Attorney Bob Barr, a Republican Representative from Georgia, appreciates the legal difference between a military action and a law enforcement activity. When Congress authorized the use of military force, he stated appropriately: "We are not interested in reading them [the terrorists and those harboring them] their rights. We are interested in taking them out, lock, stock, barrel, root, limb."

We have deployed soldiers, not peace officers. And although we are fighting terrorism with both a military and law enforcement response, these activities should not be confused or conflated. In all past American wars, our law enforcement officers have turned over enemy belligerents to military authorities. Critics of military tribunals have not explained why it should be different -- or the reverse -- this time.

In committing the country to fight terrorism with armed forces, we have not created a new national police force. Yet opponents of military tribunals simply ignore the conspicuous differences between the traditional methods employed by law enforcement to resolve problems, and military solutions. For that reason, I find most of the condemnation baseless or fallacious. A few examples make the point.

These Are Not Kangaroo Courts

The complaints of my former White House colleague, New York Times syndicated columnist Bill Safire, are typical. He charges President Bush with using "dictatorial power to jail or execute aliens" with military tribunals. According to Safire, Bush has replaced "the American rule of law with military kangaroo courts." He has circumvented the courts to "set up his own drumhead tribunals — panels of officers who will sit in judgment of non-citizens who the president need only claim 'reason to believe' are members of terrorist organizations."

Since Safire is a stickler for word usage, I checked Sylvia Cole's and Abraham H. Lass's Cultural and Historical Allusions: From the Middle Ages Through the 20th Century. They report that "a kangaroo court is a hastily convened tribunal that metes out arbitrary and summary justice, or rather injustice." Dictionaries (I checked three) have similar definitions.

However defined, Safire's charge is unjustified because the president is not setting up courts, nor did he act hastily. As the Supreme Court stated in Ex Parte Quirin, "military tribunals … are not courts in the sense of the Judiciary Article [of the Constitution]." Rather, they are the military's administrative bodies to determine the guilt of declared enemies, and pass judgment.

There is nothing hasty about this military order, which has been in the works for two months. Clearly, it has been reviewed by attorneys in the Department of Justice, the Department of Defense, and the White House.

But more importantly, it is merely the first step, for the order directs the Secretary of Defense to promulgate the rules and procedures for the military tribunals. Setting rules and procedures is antithetical to offering the "arbitrary and summary justice" that is the hallmark of a true kangaroo court.

My reading of the order is narrower than Safire's, who concluded that "non-citizens who the president need only claim 'reason to believe' are members of terrorist organizations." But another Writ columnist, Trevor Morrison, whose judgment I respect, reads it as Safire does.

What is not clear to me is whether the President intends to focus only on non-citizens who are or were members of "al Qaeda" and who have "engaged in, aided or abetted, or conspired to commit, acts of international terrorism" against the United States. Or whether he would bring al Qaeda members and all other terrorists before tribunals.

It is clear, however that the order would include non-citizens who "knowingly harbor" such persons that can be tried by a military tribunal. Those who knowingly harbor -- that is shelter, protect, hide, or conceal these war criminals from being caught -- in effect become accessories after the fact.

Hopefully, Secretary Rumsfeld's implementing rules and regulations will clear up any and all potential confusion in the order. Indeed, if it covers all terrorists, why single out al Qaeda, and what is the penalty for being a member, since there is no law on point. But if the order, in fact, covers all terrorists I understand why civil libertarians are distressed.

Criticizing Procedures That Have Not Even Yet Been Set

According to Safire, "Proponents of Bush's kangaroo court say: Don't you soft-on-terror, due-process types know there's a war on?" Or they claim that "extraordinary security measures [are] needed to save citizens' lives? If we step on a few toes, we can apologize to the civil libertarians later."

To the contrary, I'm a proponent and I've never said any of those things. Nor do I know any supporter who has adopted such a devil-may-care approach. Actually, it remains unclear what these inchoate panels can and cannot do. Not only are they still being formed, but also the law is unclear.

Because these military tribunals are not courts, and because they have been used since before the Constitution was adopted, there are unresolved issues relating to the application of the Constitution. In Quirin the Court noted, "We cannot say that Congress in preparing the Fifth and Sixth Amendments intended to extend trial by jury to cases of alien or citizen offenders against the law of war otherwise triable by military commission," even for infractions "punishable by death."

The Fifth Amendment guarantees the right to indictment by a grand jury, prohibits double jeopardy, protects against compulsory self-incrimination, and guarantees due process of law. The Sixth Amendment provides for the defendant to be afforded a speedy and public trial, to have the benefit of an impartial jury venued where the crime was committed, to be informed of the accusations against him, to be confronted by witnesses against him, to be able to use compulsory process to obtain favorable witnesses, and to have the assistance of counsel.

Whether or not the Constitution forces the President to allow defendants brought before the military tribunal these rights, it is likely the Defense Secretary will choose to set up procedures that respect all, or virtually all of these rights (the public trial right may be an exception). Indeed, President Bush's order makes clear that he wants due process and the right to counsel for terrorists. Until Secretary Rumsfeld issues his rules and procedures, it will not be clear which other provisions of the Constitution may be made part of the proceedings.

So far, Ex Parte Quirin suggests only one question regarding the constitutionality of the President Bush's order: Did the President need Congressional approval before issuing it?

Congressional Criticism

Certainly some members of Congress have criticized the order – and might have withheld their approval had it been put before them. For example, Senator Patrick J. Leahy (D-VT), chairman of the Senate Judiciary Committee, said the order "sends a message to the world that it is acceptable to hold secret trials and summary executions without the possibility of judicial review, at least when the defendant is a foreign national."

Leahy also complained that the administration did not consult with Congress before acting. He plans to hold hearings soon, which will certainly address whether the President needed Congressional approval.

The fact is, though, that wartime Presidents often act, in their capacity as Commander-in-Chief, without Congressional approval. The military authority of the Congress vis-à-vis the President is not clearly defined, and the Supreme Court generally seeks to stay out of these political disputes. According to the Bush Administration, the President acted promptly – without going through Congress – in order to make sure they had military tribunals in place should Osama bin Laden or his compatriots be captured.

In issuing his order, the President has relied on prior Congressional actions. In 1950, Congress enacted the Uniform Code of Military Justice (UCMJ), revising the earlier adopted Articles of War. On September 15, 2001, as mentioned above, Congress adopted a joint resolution authorizing use of military force to respond to the September 11th attacks. These statutes, plus President Bush's inherent authority as President and Commander in Chief, are the express basis of his order.

The Supreme Court stated in Application of Yamashita that "[t]he trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war operating as a preventive measure against such violations, but is an exercise of the authority sanctioned by Congress to administer the system of military justice …." The Court also added that "[t]he war power, from which the commission derives its existence, is not limited to victories in the field, but carries with it the inherent power to guard against the immediate renewal of the conflict, and to remedy, at least in ways Congress has recognized, the evils which the military operations have produced." The act of Congress underlying Yamashita, the Articles of War, is now the UCMJ.

There can be little doubt that President Bush has acted just as his predecessors did, namely Abraham Lincoln and Franklin D. Roosevelt. Congress had already given its approval for his actions, through these prior statutes; if it seeks to retain the power to approve each military tribunal order of each President, it must first repeal the applicable provisions of the UCMJ.

Secret Proceedings For Terrorists?

Until Rumsfeld implements the President's order, it is not possible to know whether the proceedings will all be secret. No doubt many will be closed, while others may be open. A powerful argument can be made that the Nuremberg military trials following WW II, which were public, truly showed the world the evils of the Third Reich.

These proceedings established the despicable offenses of the Nazis, showed their warped mentality, and left no doubt in anyone's mind that those who were executed were treated far more justly than their innocent holocaust victims.

Much could be learned about terrorism from open proceedings. Secret proceedings are always fraught with problems. They have a way of coming back to haunt history.

For example, the secret trials of the eight Nazi saboteurs who arrived on the Atlantic shores of New York and Florida during World War II were used to mislead Americans. The arrest of these Nazis was given much publicity by the FBI. Director J. Edgar Hoover had the world believing that his intrepid and invincible G-men had caught the Nazi spies as they had arrived – law enforcement at its best. Today we know this was not true.

In fact, Hoover, along with Attorney General Francis Biddle, had made a deal with one of the eight men, George Dasch – who had turned everyone in within days of their arrival in the United States. Dasch, who had lived in the United States and was married to an American, had joined the Nazis as a means of escaping Nazi Germany. He had planned from the outset to foil their sabotage, and turn everyone in to the authorities. Thus, the story of the spies did not reflect the efficacy of law enforcement; rather, it reflected a single individual's actions and decisions.

To prevent this truth from coming out, Hoover and Biddle promised Dasch that if he pled guilty, he would be pardoned by the President within six months. He agreed. Thus, when the seven others appealed to the Supreme Court, in the landmark case Ex Parte Quirin that I have discussed above, Dasch did not join them.

After all the men were convicted in the secret proceeding, Hoover and Biddle "forgot" their promise. Six of the defendants were electrocuted within hours of their having been found guilty. President Roosevelt did commute one defendant's sentence to life because of his cooperation, and he commuted George Dasch's to 30 years.

Dasch served six years before President Truman released him in 1948, on the condition that he would go back to Germany. But Hoover, outraged that Truman had let Dasch (and potentially his secret) out of prison, snatched Dasch at the prison gate and whisked him out of the country before he could tell his story. It took decades for the true facts to come to light.

There is a small plaque on the wall of the Fifth Floor at the Department of Justice, not far from the Attorney General's office, commemorating those secret proceedings. Francis Biddle himself prosecuted the case. It is that plaque that gave former Attorney General William P. Barr the idea of using military tribunals to bring terrorists to justice following the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland.

While it did not work out in 1988, William Barr did not forget. I understand that following the September 11th attacks, this former Attorney General suggested to the Bush Administration that they consider using military tribunals. This is the genesis of these tribunals.

That plaque in the Justice Department should also be a reminder that secret proceedings can result in misusing, if not abusing, enemies as well. George Dasch's case is a cautionary tale. Had the press been able to tell Dasch's story at the time, Hoover might have been forced to keep his promise, not to mention shown as the deceitful blow-hard he proved to be.

Not All Secrecy Is Bad

A close reading of President Bush's order suggests that the principal reason for secrecy is concern about compromising classified intelligence sources.

Many cases have never been prosecuted against criminals because to do so would force disclosure of a valued intelligence source – be it an informant, an enemy code that had been broken, or an illegal electronic intelligence source that might provoke an international incident. But with suspected terrorists, the prosecutions are simply too important to be dropped due to fears of disclosing intelligence sources.

The President's order would protect such sources. At a military trial, such information could be provided the officers hearing the case; it could not, however, be given to a lay jury in a civil trial, due to the security risks. (As I discussed in my prior column on tribunals, jury service on a terrorist trial involving al Qaeda would also be a nightmare for jurors – with some potentially having to go into the Witness Protection Program).

Such sources might help with convictions – and they might also exonerate suspects. Either way, we need factfinders who can hear about these intelligence sources, and keep them secret, and that means we need a military proceeding.

Criticism Of Summary Executions

Both Bill Safire and Senator Leahy have been critical of the provision in Bush's order providing for convicting and imposition of even a death sentence upon a less than unanimous vote of the tribunal. The President wants conviction and the death penalty with a two-thirds vote. I agree with this complaint – though it should not necessarily be a wedge to broader-based criticism of the tribunals. Rather, specific lobbying for amendment of the order to require unanimity is what is called for.

Normal rules of evidence will not apply to these proceedings, and the panels will surely call on highly experience military officers with a background in the law to sit in judgment of the terrorists. In this context, it would seem only appropriate that the judgments of the panel should be unanimous, particularly before imposing a death sentence.

If an experienced military officer (or several), having heard all possible evidence, dissents, that should be enough. To execute bin Laden, or any terrorists, on less than unanimous verdicts, is going to create serious credibility problems for these tribunals.

Amazingly, Bill Safire's "solution" to the unanimity issue is simply to dispense with military tribunals, and go directly to summary executions, without any due process at all. Safire writes:

The solution is not to corrupt our judicial tradition by making bin Laden the star of a new Star Chamber. The solution is to turn his cave into his crypt. When fleeing Taliban reveal his whereabouts, our bombers should promptly bid him farewell with 15,000-pound daisy-cutters and 5,000-pound rock-penetrators.

Safire's bottom line, of course, makes short-shrift of his purported concern for civil liberties. Apparently, he'll give due process, but only if we are unlucky enough not to kill our foe first.

Such thinking only makes clear why we need to carefully work out processes that allow us to give suspected terrorists justice, but to protect ourselves, too. If we do not, we may be tempted to cover up our failures by declining to bring suspects to justice at all. Civilian juries will not work in this context, but that does not mean that we cannot create fair processes. And any process is fairer than dropping bombs simply to eliminate these problems.

The lack of a requirement for unanimity in death penalty cases is the only serious flaw I find (so far) in the President's plan. But stay tuned. Secretary Rumsfeld must fill in the blanks of the President's order, and the Senate Judiciary Committee is going to have a lot of questions. We should all want these questions answered before any of the hundreds of suspects being held around the world, and awaiting trial, go before any military tribunal.

[betty boop]

There are no exceptions allowed, or should be sought by anyone who lays claim to understanding them, for any reason, at any time, and it matters not what excuse is given to even attempt it, let alone to implement or support such a change.

Wonderful essay, zog. Not much to disagree with there -- except in the last graph, excerpt above.

NO exceptions??? EVER??? Not even SELF-DEFENSE? What does that line of reasoning do the the inalienable right to life -- mine and yours? I have noticed that OBL and crew spit on that right with impunity. So if you've got a ravening dog furiously charging at you in the street, you should NOT shoot the dog?

Just checking to see whether we're "on the same page," my friend. All my best -- bb.

[Luis Gonzalez]

"There is no national emergency."

Declaration of National Emergency by Reason Of Certain Terrorist Attacks
By the President of the United States of America
A Proclamation

     A national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.

     NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me as President by the Constitution and the laws of the United States, I hereby declare that the national emergency has existed since September 11, 2001, and, pursuant to the National Emergencies Act (50 U.S.C. 1601 et seq.), I intend to utilize the following statutes:  sections 123, 123a, 527, 2201(c), 12006, and 12302 of title 10, United States Code, and sections 331, 359, and 367 of title 14, United States Code.

     This proclamation immediately shall be published in the Federal Register or disseminated through the Emergency Federal Register, and transmitted to the Congress.

     This proclamation is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.

     IN WITNESS WHEREOF, I have hereunto set my hand this        fourteenth day of September, in the year of our Lord two thousand one, and of the Independence of the United States of America the two hundred and twenty-sixth.

                               GEORGE W. BUSH

[backup]

John Dean?!

Let me guess...

Breaking into and bugging the offices of the DNC is constitutional as well...

I'm not one to "shoot the messenger", but in this case I think it is appropriate.

[Demidog]

It says nothing about the rights listed. This specifically says that writ of habeous corpus is a privilege. Thus no rights can be suspended at any time.

[gjenkins]

"But exactly when did you expect that Tom Daschle, Harry Reid, Charles Schumer, Hillary Clinton, Barbara Boxer, Dianne Feinstein, Ted Kennedy, John Kerry, Chris Dodd, Evan Bayh, Jon Edwards, not to mention the What's-Her-Name senator from Missouri who got the job because her husband died in a plane crash (vastly aided by simply staggering voter fraud in the process) et al., would agree to "do the right thing for America" so to make such a declaration?..."

Obviously 'we' the people are not ready or willing to declare war. If you buy into the democracy bs by playing the game as it is played now, then you have no recourse when the majority does not believe as you do. What would a declaration hurt ... I fear it would be detrimental to something bigger than this 'war' effort.

[zog]

--we have the born-with rights of life, liberty, and the purrr-fooot of happiness. That would tend to cover self defense adequately I guess...

;^)

http://pages.prodigy.net/krtq73aa/declare.htm

What America Is About:

THE DECLARATION OF INDEPENDENCE

In Congress, July 4, 1776

The Unanimous Declaration Of The Thirteen United States Of America

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect for the opinions of mankind requires that they should declare the causes which impel them to the separation.

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. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of Immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions of the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within.

He has endeavored to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment or their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislature.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing taxes on us without our Consent:

For depriving us in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offenses:

For abolishing the free System of English Laws in a neighboring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Government:

For suspending our own Legislature, and declaring themselves invested with Power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large armies of foreign mercenaries to compleat the works of death, desolution and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of war-fare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free People.

Nor have We been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our lives, our Fortunes and our sacred Honor.

---

---

[RightWhale]

Here's a question that came up with this former-American Taliban who was captured. Can he be tried for treason, or does a war need to be declared by Congress first. While America is certainly at war, America did not declare war, it not being necessary. But treason requires a declared war, which we do not have.

So then, would the Constitution not be in effect since war was not declared. Even though we are at war.

???

[backup]

A national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.

You really think that by any objective standard the US is in a state of emergency?

Perhaps it was on 9-14 -- the day this proclamation was made -- afterall, air travel had been suspended.

But now? Three months later?

Give me a break...

[general_re]

Thank you, Publius - I saw the Terminiello decision, but picked the other one since the phrasing seemed close to what Betty was looking for. The subject also seemed oddly akin to the topic at hand - the rights of citizens. Like so:

The Constitution is silent about the permissibility of involuntary forfeiture of citizenship rights. While it confirms citizenship rights, plainly there are imperative obligations of citizenship, performance of which Congress in the exercise of its powers may constitutionally exact. One of the most important of these is to serve the country in time of war and national emergency. The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact.

BTW, Betty - Findlaw has a really useful full-text search facility. Just go to their SCOTUS search page, scroll down to middle of the page, put the word or phrase you want to search for into the "Full-Text Search" box, and away you go ;)

[Luis Gonzalez]

So, faced with an argument that you can't refute, you attack the messenger, and claim that you don't do that sort of thing?

Mr. or Mrs. Clinton...which one are you?

[H.Akston]

"Hugh may be advocating the sale of American Rights, pay the government, and get yourself some rights.

Get yourself some representation, maybe, but not rights - those are things you can't buy. Some of them, like the right to "have compulsory process for obtaining witnesses in his favor" (6th), are guaranteed by the Bill of Rights, to American citizens. I don't think Osama should have a right to have compulsory witnesses, if he gets to US soil. Would Barr want Osama to hire Johnny Cochran, and subpoena all the CIA, NSA, and FBI Records documenting his guilt, study how the evidence against him was obtained, and then give him a phone call so he can tell Saddam the secrets of our intelligence network? The trial must be public, according to the 6th Amendment. It must be by "an impartial jury". Barr is quite idealistic. No Jury is going to acquit Osama - the end result is going to be the same. We can dispose of him neatly, or unzip our country's fly in front of him and Johnny Cochran, and let him take even more of our country down with him when he goes. The choice is obvious.

Hugh, no one that spends more than a day on US soil escapes paying taxes."

Luis luis. Hey, hey....
there you go again. As with Barr, all I need to do is show one example of where you're wrong.

"Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed." - 14th Amendment Section 2.

I bet I can find an Indian who's been here more than "a day", and who is "not taxed".

Bonus example: I bet I can find a Mexican who's been here a month, who isn't taxed.

[H.Akston]

Much obliged, Betty.

As usual, you're rationality is beyond question.

[Twodees]

Exactly correct. There is nothing to add.

[H.Akston]

Where are you going to find for Osama an "impartial jury of the state and district wherein the crime shall have been committed" [a 6th Amendment right] ?

Give me a break.