Obama Defends Habeas Corpus

In the political equivalent of a “Man Bites Dog” story, Barack Obama, presidential candidate, actually contrasted himself with his opponent on the grounds that he would better protect liberty than McCain.

“I have said repeatedly that there should be no contradiction between keeping America safe and secure and respecting our Constitution,” Obama said. “During the Republican convention, you remember during the Republican convention, one of them, I don’t know if it was Rudy or Palin … they said, ‘Well, ya know, Sen. Obama is less interested in protecting you from terrorists than … reading them their rights.’”

[…]

But, the former constitutional law professor argued, “What I have also said is this: that when you suspend habeas corpus — which has been a principle, dating before even our country, it’s the foundation of Anglo-American law — which says, very simply, if the government grabs you, then you have the right to at least ask, ‘Why was I grabbed?’ and say, ‘Maybe you’ve got the wrong person.’

“The reason you have that safeguard,” he said, “is because we don’t always have the right person. We don’t always catch the right person. We may think this is Mohammed the terrorist, it might be Mohammed the cab driver. You may think it’s Barack the bomb thrower, but it might be Barack the guy running for president.

“The reason that you have this principle is not to be soft on terrorism, it’s because that’s who we are,” Obama said as the crowd rose to its feet, applauding. “That’s what we’re protecting. Don’t mock the Constitution! Don’t make fun of it! Don’t suggest that it’s un-American to abide by what the founding fathers set up! It’s worked pretty well for over 200 years!”

Not only is this a nice, common sense defense of the essential right of habeas corpus, my mind is still reeling at the fact that a Presidential candidate is actually defending civil liberties that don’t involve the Second or First amendments in a real and powerful way. What’s next? An actual acknowledgment that the Ninth Amendment isn’t just a placeholder? A defense of enumerated powers? A recognition that the Commerce Clause doesn’t actually give the Feds the power to regulate anything they want?

Okay, probably not anytime soon. But a strong defense of habeas corpus is a good start. Man, if he keeps talking like this, my vote for Obama might not be on just “lesser of two evils” grounds.

FILED UNDER: Campaign 2008, Law and the Courts, Politicians, , , ,
Alex Knapp
About Alex Knapp
Alex Knapp is Associate Editor at Forbes for science and games. He was a longtime blogger elsewhere before joining the OTB team in June 2005 and contributed some 700 posts through January 2013. Follow him on Twitter @TheAlexKnapp.

Comments

  1. Billy says:

    This is exactly the reason I will be voting for Obama with a clear conscience. If there’s a single issue, this is it.

    Sadly, I think I am in the vast minority.

  2. RWB says:

    Being a former prisoner of war, being a victim of torture, these should have been McCains issues; his military experience qualifies HIM to speak out on prisoner treatment and civil rights, and torture. The fact that he has been so weak in this area is exactly why I no loner respect or support him.

    Yes, I know he made some noise about these issues, but when push came to shove, Mr. Maverick shut up and sat down so as not to alienate the party machine to his candidacy. In 2000 I happily supported him, this year I probably just won’t vote.

  3. Alex Knapp says:

    RWB,

    I’m with you completely. I have never been a McCain fan, and wasn’t in 2000. But when he was fighting for his anti-torture amendment, I truly admired him. The fact that he eventually caved on torture issue with respect to intelligence agencies was bitterly disappointing to me.

  4. Zelsdorf Ragshaft III says:

    Habeus Corpus does not apply to foreign enemies. Wonder if Daniel Perle was given habeus corpus prior to his beheading? We are at war with radical islam. Wars are not won by giving such rights to those who would kill you. Stupid.

  5. RWB says:

    So are you saying that we should behead terrorists when we capture them because that is how they act? Are we supposed to start acting like our enemies? How does that give us the moral high ground?
    Habeus corpus is a critical part of who we WERE.

    Terrorists attack us with guns overseas, do you want to suspend the second ammendment too.

  6. Clint says:

    Of course, if Governor Palin had said this…

    … the new talking point would be that she thought the reading of the Miranda Rights had been around for 200 years…

  7. Beldar says:

    Yes, but … civil liberties for whom?

    No one disputes that American citizens in the custody of the federal government, wherever apprehended, and wherever held, have rights under the U.S. Constitution that may be protected through a writ of habeas corpus.

    No one disputes that non-citizens arrested in the U.S. have those same rights because, as you say, Alex, that’s who we are.

    Foreign citizens captured on foreign battlefields in the commission of war crimes — is that who we are?

    If it’s not, then why do those people have rights under the U.S. Constitution?

    Before Boumediene, no federal court had ever held that such foreign detainees have rights under our Constitution. Why should they, Alex?

    And if they do, who does not?

  8. Matt says:

    victim of torture enhanced interrogation techniques

    Fixed.

  9. Brian says:

    Foreign citizens captured on foreign battlefields in the commission of war crimes — is that who we are?

    I don’t think I understand the statement. Do you mean that we are the foreign citizens committing war crimes? Or are we attempting to extend to captured combatants the same civil rights guaranteed us as you already described?

    I honestly don’t think you intend we are the former. So, I think you are asking if we are the latter. (If I’m wrong, please correct me.)

    If we are not those agents of liberty, shouldn’t we be? Does it harm us to act humanely and justly?

    I understand the point you are making in that the U.S. government has an agreement with those residing on U.S. soil, particularly citizens, to grant certain civil liberties. But should those civil rights be unique to us alone? If we are able, shouldn’t we extend those rights as habit of who we are? Even if they don’t ‘technically’ apply to others?

    I think this is the point you are making. Again, if I’m wrong, please clarify, and use small words and simple diagrams too, because I am no lawyer;)

    The point I’m making though is this: Our identity as Americans is the Constitution. We should follow it because that’s who we are. Never mind them. They are brutal, they are arbitrary, they are criminal. We are Habeas Corpus, we are Due Process, we are Fair Trials. We cannot abandon who we are, or we become them. I’ve seen it before.

  10. Rick DeMent says:

    to Zelsdorf Ragshaft III,

    OK fine let’s do it your way, and you know what I think you have a funny name … yeah I think your an enemy combatant. Now if I’m placed well enough in the government say that you are, under your plan, makes it true. I snap my fingers and bam, you are not a US citizen, you are an enemy combatant. Now you know it’s not true but with out the rights of HB you don’t get to prove it.

    You cannot fight terrorists by their method, you can never command the moral high ground by playing in the mud with pigs. The Geneva conventions are outdated and doesn’t address non-governmental enemy’s very well and needs an overhaul. Sure it’s much easier to kill them all, the guilty and innocent alike, but we can’t ever win by doing that. Guantanamo and Abu Grab have made our country weaker not stronger despite your “tough” talk”.

    We need to walk our walk not let our national identity be hijacked by insecure bed wetters who can’t grasp these simple truths.

  11. Bithead says:

    Okay, probably not anytime soon. But a strong defense of habeus corpus is a good start.

    It would be, without all the qualifications. With them it’s logical to question what he has in mind.
    Questions such as….Whose liberties are being defended, here, anyway? (^5 Beldar)

    Add to that the obvious lack of real understanding of the issues as Clint points out and what we have is more empty words from a man whom we’ve come to recognize as a master of them… Barry O.

  12. G.A.Phillips says:

    The privilege of the Writ of Habeas Corpus shall not be suspended unless when in case of Rebellion or Invasion the public Safety may require it.

    We need to walk our walk not let our national identity be hijacked by insecure bed wetters who can’t grasp these simple truths.

    you need to learn a truth before before we get hijacked again cause your worried about the rights of frocking terrorists and or terrorist suspects, but I’m sure like most liberals your probably only worried about getting caught with your bag of dope and thinking this will some how effect you.

    walk the walk , moral high ground, please.

  13. Dantheman says:

    “No one disputes that American citizens in the custody of the federal government, wherever apprehended, and wherever held, have rights under the U.S. Constitution that may be protected through a writ of habeas corpus.”

    Not for Jose Padilla.

    “No one disputes that non-citizens arrested in the U.S. have those same rights because, as you say, Alex, that’s who we are.”

    Not for Maher Arar.

  14. Anderson says:

    You may think it’s Barack the bomb thrower, but it might be Barack the guy running for president.

    But aren’t those actually the same guy?

  15. Count me as another voter who is quite disappointed that Senator McCain has not better addressed this issue. I did expect more from him on this topic.

  16. Billy says:

    “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

    Beldar, please explain how affording non-citizens the right of habeas makes us less safe; bonus points if you can do so while acknowledging that we are not legally at war and that in a conflict event the enemies of the state will be killed rather than captured.

  17. PD Shaw says:

    Habeas Corpus does not fit well into the civil liberties pantheon like Free Speech or the Right to Bear Arms because the Constitution says it can be suspended. To paraphrase Lincoln, the issue reduced to its essentials is who can suspend the writ and for whom.

    I would like to know when Obama thinks is an appropriate time to ask Congress to suspend the writ. That is where his power lies. Everything else is pretty irrelevant.

    On the flip side, what gun legislation would he propose? What would he veto? The right to bear arms (like the right to free speech) is a principle. What does that principle mean to him? Much more relevant.

  18. Michael says:

    Beldar,
    In your opinion, did the Constitution create rights you otherwise would not be entitled to, or does the Constitution restrict the government from taking away the rights you already had?

    If you believe that foreign nationals are not naturally entitled to the same rights detailed in the Constitution, then you must believe you are only entitled to those rights as a result of the Constitution, which seems to go against the writings of most of our founders.

  19. Michael says:

    Questions such as….Whose liberties are being defended, here, anyway?

    The answer is: Everybody’s. Because we believe that all men are created equal, not just some, and that all are endowed by their creator with certain unalienable rights, not just some.

    I, as an American, believe that everyone, even goat herders in Afghanistan, is created equal, and with certain unalienable rights. And that if we don’t naturally extend those rights to foreign nationals, then we will not be secure in them ourselves.

    I’m not saying that our laws should apply to everyone, but certainly our rights should. Laws are social contracts that both sides agree to, but rights are not.

  20. PD Shaw says:

    Michael, I disagree with the notion that the habeas remedy is a right. See the 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.

    A privilege is something not generally possessed by others.

  21. sam says:

    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.

    A privilege is something not generally possessed by others.

    I don’t think that’s quite right, PD. Roughly, a privilege is something that can be take away by government, as indicated in the Suspension Clause (Art. 1, Sec. 9). A right, on the other hand, is something that cannot be taken away by government. E.g. my right to free speech, freedom of assembly, gun ownership. That is, once it’s established under our constitution that I possess a right, government cannot take away that right. (It can be circumscribed of course — I can’t yell “Fire!” in a crowded theater).

  22. anjin-san says:

    Are we willing to die standing for freedom, or will we choose to crawl away from it, because we think it might somehow make us safer?

    Governments pretty much always abuse power. The right should certainly know this. If habeas is flushed, we are far down the slippery slope.

  23. Billy says:

    The debate over “privilege” vs. “right” is a red herring, and confuses procedure with substance. Habeas is a writ; you don’t have a “right” to a writ of habeas any more than you have a “right” to a writ of mandamus.

    The “right” is due process; the “privilege” which enables the right is habeas. In many ways, the privilege is more protected than are those rights described in the amendments, as the only suspension of habeas allowed is in situations of rebellion or invasion. As sam pointed out, many of the rights enumerated in the constitution are prone to judicial circumscription, but the courts cannot suspend the writ of habeas except as therein described.

  24. Michael says:

    Michael, I disagree with the notion that the habeas remedy is a right.

    I made a point to avoid saying that Habeas was a right. Rather, Habeas is a mechanism used to ensure the right to a fair and speedy trial. The Constitution allows for Habeas to be suspended, but it doesn’t allow for the 5th and 6th amendments to be suspended. If we don’t extend Habeas to “enemy combatants”, then we need to introduce some other mechanism to ensure that they get a fair and speedy trail.

  25. Bithead says:

    The answer is: Everybody’s.

    No.
    Untrue.

    And even you say:

    I made a point to avoid saying that Habeas was a right. Rather, Habeas is a mechanism used to ensure the right to a fair and speedy trial

    So, what in effect you’re doing in the case of non-citizens is creating right that did not theretofore exist.

    So, again, For whose benefit?Certainly not the benefit of the citizens of this country.

  26. RWB says:

    Under the current state of “law” and unrestricted executive power, American citizens can be picked up on American soil and held without Habeas Corpus, or any acknowledgment that they are even being held. In other words, any of us at the whim of the president or anyone he designates can be treated the same as enemy terrorists apprehended on foreign soil. I told my wife that even though I did not think this WOULD ever be applied to American citizens, it bothered me that it could be. She asked how I knew it has not been done yet? She hit the core of the problem, transparency.

    Habeas Corpus forces democracys to act transparently in areas where tyranies enjoy secrecy.

  27. ptfe says:

    sam & PD:

    Just to (hopefully) clear up the apparent confusion about the phrase “privilege of the writ of habeus corpus” — a privilege (in this context) refers to the document conferring habeus corpus as provided in British law, not to what’s conferred. This is evidenced by both the legal nature and the time period; the use of “privilege” to mean “deed” or “letter” or “document” is common to the legal tradition of the era. The “writ” in this case is the affirmation made by the governing agent.

    This word has nothing to do with “rights” vs “privileges” — nor does it have to do with the form of privilege implying something not possessed by all: indeed, a privilege can grant privileges to someone, or it can grant rights to everyone; there’s no way to distinguish based solely on that word, nor is there any way to distinguish based on the entire phrase without knowing what the “writ of habeus corpus” actually says (which is a separate issue entirely).

    Sorry, it’s just painful to watch a debate turn semantic when neither party seems to understand the etymological fundamentals of the words they’re trying to pick apart.

  28. Michael says:

    So, what in effect you’re doing in the case of non-citizens is creating right that did not theretofore exist.

    The rights exist, whether they are realized or not. Habeas doesn’t give you the right to a fair and speedy trial, it just gives you a means of enforcing that the US government abide by the right which you naturally have.

    So, again, For whose benefit?Certainly not the benefit of the citizens of this country.

    I don’t want my government to start thinking that rights can be revoked or ignored. Making them recognize that rights exist independent of government benefits me, and you too for that matter.

  29. anjin-san says:

    Given the ample abuse of “national security letters” and no-fly lists over recent years. is there any reason at all to think that a suspension of Habeas will not/is not being abused?

  30. PD Shaw says:

    Part of the reason for emphasizing the word “privilege” is that the Constitution uses the word:

    The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

    In my view, the privilege of habeaus corpus is a privilege of citizenship.

  31. Michael says:

    In my view, the privilege of habeaus corpus is a privilege of citizenship.

    Yes, but the real underlying question is whether or not due process is a privilege of citizenship, or a natural right.

  32. Bithead says:

    Given the ample abuse of “national security letters” and no-fly lists over recent years. is there any reason at all to think that a suspension of Habeas will not/is not being abused?

    So, you have no proof that it is, and yet you want to charge people in the government with abuse of it? A rather odd argument if your intent is simply supporting Habeas. On the other hand, it’s a neat little excuse if, as I suspect, your motive is political.

    In my view, the privilege of habeaus corpus is a privilege of citizenship.

    Correct.

  33. Joe says:

    These are vital laws and principles Obama is discussing. How long before we no longer feel the need to read murderers their rights? Then rapists, then thieves and finally shop-lifters. These are the foundations of our legal system, and they should be followed regardless of how difficult that may be.

  34. Bithead says:

    Yes, but the real underlying question is whether or not due process is a privilege of citizenship, or a natural right.

    When worded that way, it could be argued that even Pedia wasn’t denied due process.

    Make sure of you footing here….

  35. Billy says:

    This thread is thick with the blind leading the blind re: “privileges” and the word’s constitutional meaning.

    When in doubt, read Bithead’s analysis and realize that he’s the opposite of correct.

  36. Michael says:

    When worded that way, it could be argued that even Pedia wasn’t denied due process.

    Due process, yes, but 3.5 years is not a speedy trial. In my opinion, Jose Padilla had his rights, as protected under the 6th amendment, violated.

  37. Bithead says:

    Due process, yes, but 3.5 years is not a speedy trial.

    You missed the point of the post, or at least attributed something to it I hadn’t intended.

    In my opinion, Jose Padilla had his rights, as protected under the 6th amendment, violated.

    Absent the phrase ‘act of war’, perhaps. With it? A whole nother matter.

    This thread is thick with the blind leading the blind re: “privileges” and the word’s constitutional meaning.

    When in doubt, read Bithead’s analysis and realize that he’s the opposite of correct.

    The word is explicit.

  38. Bithead says:

    Arrgh. Dropped a tag, sorry.

    Due process, yes, but 3.5 years is not a speedy trial.

    You missed the point of the post, or at least attributed something to it I hadn’t intended.

    In my opinion, Jose Padilla had his rights, as protected under the 6th amendment, violated.

    Absent the phrase ‘act of war’, perhaps. With it? A whole nother matter.

    This thread is thick with the blind leading the blind re: “privileges” and the word’s constitutional meaning.

    When in doubt, read Bithead’s analysis and realize that he’s the opposite of correct.

    The word is explicit.

  39. Michael says:

    You missed the point of the post, or at least attributed something to it I hadn’t intended.

    I’m still speaking in terms of my original proposition. What are you talking about?

    Absent the phrase ‘act of war’, perhaps. With it? A whole nother matter.

    I’m not entirely sure what you’re trying to say. Where does that phrase come into play here?

  40. Bithead says:

    Come on, Michael, this stuff ain’t exactly rocket science. The guy was about lighting up a dirty bomb in a US city in support of Alquieda. Naming him an illegal enemy combatant and dealing with him on that basis was and remains the correct thing to do. What he proposed to do was an act of war, no?

  41. Billy says:

    What he proposed to do was an act of war, no?

    Please explain how this logic does not equally apply to Eric Rudolph.

  42. Dantheman says:

    “The guy was about lighting up a dirty bomb in a US city in support of Alquieda.”

    The whole point of habeas corpus is that elected officials can’t just say something like that and expect to shut up their enemies forever. They actually need to be able to prove it to a court.

  43. Michael says:

    Come on, Michael, this stuff ain’t exactly rocket science.

    No, it’s Law, a topic all together more complicated than rocket science.

    The guy was about lighting up a dirty bomb in a US city in support of Alquieda.

    Was he? Lets see: “conspired to murder, kidnap and maim people overseas.” Nope, he wasn’t charged with attempting to use a dirty bomb. And what’s up with your spelling today?

    Naming him an illegal enemy combatant and dealing with him on that basis was and remains the correct thing to do.

    I’m still unclear of what the legal framework is for the “enemy combatant” label, but certainly he should have been detained, charged, tried and punished when found guilty, I just don’t think it should have taken 3.5 years to bring charges against him.

    What he proposed to do was an act of war, no?

    Was it? If he was going to do it for some separatist group within the US, would it be considered an act of war? I’m dubious about making exceptions in our legal framework just for Al Qaeda.

  44. G.A.Phillips says:

    The privilege of the Writ of Habeas Corpus shall not be suspended unless when in case of Rebellion or Invasion the public Safety may require it.

    as always liberals don’t read the whole thing.

    See the part were it says invasion see the part were it says the public safety may require it.

  45. Michael says:

    as always liberals don’t read the whole thing.

    See the part were it says invasion see the part were it says the public safety may require it.

    We are not under invasion, or even threat of invasion, nor is there a current rebellion, and I think you would be very hard pressed to argue that the public safety requires it’s suspension.

  46. Bithead says:

    Please explain how this logic does not equally apply to Eric Rudolph.

    In many ways. Not least of them, Rudolph was not trying to topple the government of the US.

    Also, I suppose you didn’t notice the slight difference between picking off individuals with a rifle, and dropping a dirty bomb on thousands/millions.

    Nope, he wasn’t charged with attempting to use a dirty bomb

    So, you’re still not aware there’s a difference between the law and reality?

  47. Michael says:

    So, you’re still not aware there’s a difference between the law and reality?

    No, I’m just not blessed with the omnipotence you somehow achieved, and so I am forced to rely on our system of jurisprudence to determine a person’s innocence or guilt.

  48. Billy says:

    Also, I suppose you didn’t notice the slight difference between picking off individuals with a rifle, and dropping a dirty bomb on thousands/millions.

    Notwithstanding your inability to type “Eric Rudolph” into Google, and at the risk of being mistaken for an idiot for arguing with one, I think the primary difference was that Rudolph actually set off bombs, whereas Padilla allegedly sought to make a bomb with radioactive materials. The “dropping” and “thousands/millions” comments clearly demonstrate that you have no idea what a dirty bomb is, how it works, or even what the government was alleging that Padilla did.

    Any speculation as to motive on the part of Padilla or Rudolph is just that. The law normally does not recognize motive (distinct from “intent”) as a factor with regard to the nature of a crime, and regarding rights afforded under the constitution, is so remote from anything relevant that your inability to make this distinction would be laughable if it weren’t just sad.

    Your family has my condolences.

  49. steve says:

    From the MNF-I Commander’s guidelines….

    “- Live our values. Do not hesitate to kill or capture the enemy, but stay true to the values we hold dear. This is what distinguishes us from our enemies. There is no tougher endeavor than the one in which we are engaged. It is often brutal, physically demanding, and frustrating. All of us experience moments of anger, but we can neither give in to dark impulses nor tolerate unacceptable actions by others.”

    Also, anyone who has read the Army FM 3-24. especially the appendices, understands that
    Petraeus, that wussy liberal from Princeton, would clearly favor Habeus or some close approximation for enemy combatants.

    Steve

  50. G.A.Phillips says:

    We are not under invasion, or even threat of invasion, nor is there a current rebellion, and I think you would be very hard pressed to argue that the public safety requires it’s suspension.

    Rebellion has nothing to do with it.

    as for invasion, what are you waiting for the Muslim navy to land in New York and start chopping off heads?

    Covert foreign agents killed how many people on 9/11? how many cells are still here? Come on bro I know your smart.

    safety requires it’s suspension for certain suspects yes, very much yes.

    I would never argue the idiocy of giving it to combatants that we are trying to keep off the battle field.

  51. Billy says:

    as for invasion, what are you waiting for the Muslim navy to land in New York and start chopping off heads?

    What you have just written is the most insanely idiotic thing I have ever read. At no point during your rambling, incoherent post did you approach anything approaching a rational thought. Everyone in this thread is now dumber for having read it. I award you no points, and may God have mercy on your soul.

  52. Michael says:

    as for invasion, what are you waiting for the Muslim navy to land in New York and start chopping off heads?

    See now, that would be an invasion. Though I’m pretty sure “the Muslim navy” would have decapitated themselves long before they could reach our shores, if history teaches us anything.

    Covert foreign agents killed how many people on 9/11? how many cells are still here? Come on bro I know your smart.

    19 people don’t make an invasion.

    safety requires it’s suspension for certain suspects yes, very much yes.

    I don’t think the Constitution allows for it’s suspension “for certain suspects”.

  53. RWB says:

    We should repeat again Ben Franklins words ( written in once in this thread already):

    “Those who would give up Essential Liberty to purchase a little Temporary Safety deserve neither Liberty nor Safety”

    The only places in the world that were safe from terrorists before 2003 were North Korea, and the part of Iraq controlled by Siddham. In both cases the governments killed many more citizens than the terrorists ever could.

    I do not want to live under a government where I am “safe”

  54. Bithead says:

    We are not under invasion, or even threat of invasion, nor is there a current rebellion,

    And what level of omnipotence is required, shortly after 9/11, is required to come up with that, given what he was trying to do?

    By your lights, we’d have been better off waiting for such a bomb to go off. I’m just waiting for one of you to SAY it.

  55. tom p says:

    What part of these words do some people not get?

    “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.”

    When Habeaus is denied of one, it is denied of all. And Bush HAS… Maybe I am next, maybe you? Who will know? Surely not you… nor I….

    This was McCain’s issue, but he surrendered it a long time ago.

    Stop drinking the Kool-Aid…

  56. Beldar says:

    Habeas corpus is something that only makes sense in the context of government. Historically, it is a writ by which the Judiciary commands the Executive to “produce the body,” i.e., bring someone being held captive, and justify that.

    But before Boumediene, it has never, ever been held by any court to be a right that extends to foreign citizens behind held abroad in the custody of the American government based on their actions abroad.

    Never before has any federal court held that such individuals are entitled to assert rights under the U.S. Constitution. There were, however, cases on point, and they went the other way (i.e., held that such individuals were not entitled to assert rights under the U.S. Constitution).

    So I ask again: If they have the right to habeas corpus, what rights under the U.S. Constitution do these people not have?

    Are they entitled to be free from unreasonable searches and seizures (arrests)? Do the Marines need arrest warrants to capture the terrorists who are shooting at them? Are they entitled to Miranda warnings?

    McCain thinks not. I think not. I’ll go farther, and opine that anyone who thinks the Marines ought to have to give Miranda warnings is a fool.

  57. RWB says:

    Terrorists captured overseas are prisoners of war with certain rights ( if we really are fighting a war on terror ), or ILLEGAL enemy combatants ( that is soldiers out of uniform behind enemy lines, enemy combatant is a bushism that means nothing) whom may, I believe, under international law be shot on capture.

    The problem in NOT THE STATUS OF TERRORISTS OVERSEAS, it is that Habeas corpus is suspended for American citizens on American soil at the whim of W. If this does not bother you, you do not understand the principles of this country you profess to love.

  58. Bithead says:

    What part of these words do some people not get?

    “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.”

    When Habeaus is denied of one, it is denied of all.

    How can so many miss the obvious? Remember the context of the statement, here… this is part of throwing off an old power. He’s saying ‘we’ as in this new nation, who are no longer a part of your kingdom. The operative word in that text is the word ‘WE’.
    Jefferson was not speaking of a universal truth that so many misattribute to these lines at all… rather, he was speaking of the citizens of these United States. Those standards he mentions apply only to those beliving in them and who are a part of this citizenry.

    Consider; if it was in fact a universal truth that all men were created equal, it wouldn’t have been such a radical idea, for the time, much less then to now. Last I checked, it is quite true that a vast majority still do not consider these as any kind of truth, universal or otherwise; they consider them to be anything BUT self-evident. Royalty still exists, as do class structures, and slavery, as well. And I’m not even going to attempt Islamic society within this context, right now.

    Again, I say…Jefferson was speaking of the point of view of OUR culture, not that of others.

    The fact of the matter is that RIGHTS ARE A CULTURAL CONCEPT, and are nigh on meaningless outside that construct. Once the culture is allowed to fall to the law, even in an attempt to impose rights where they do not exist, what happens to real rights, which are a cultural concept?

    When one says “freedom”, the question should be ‘freedom from what’? The answers that come back will invariably be cultural in nature. They do not make any sense outside that environment.

    Which is, by extention, why, even such as Padilla have no rights within our system, nor should they. Because after all, what is AlQuieda trying to dismantle, if not our American culture?

  59. Michael says:

    What Jefferson actually said was:

    We hold these truths to be sacred and undeniable, that all men are created equal and independent; that from that equal creation they derive in rights inherent and unalienables, among which are the preservation of life, and liberty and the pursuit of happiness; . . .

    I cannot fathom what perversion of logic would lead you to believe that he attributed those rights only to Americans.

  60. Billy says:

    Bithead – you are a petty little troll who lacks the ability to understand simple English. The words are “all men are created equal.” “We” is the subject of the first clause, not of the second. It is “we” who are “hold”ing the “truth” that “all men are created equal” to “be self evident.” It is not “‘we’ are ‘created equal’ to each other but are better than everyone else.”

    I won’t even attempt to convince you of anything else, because you clearly have no intention of engaging anyone on the issues ever, and in four years of posting on this board I have never once seen anything resembling a glimmer of intelligence in anything you have written. I have derived endless amusement from your troglodytic pig-ignorance, and my greatest consolation is that from your own words it is crystal clear what a unequivocal fool you are. Henceforth, every response I give to anything you post will be an ad hominem attack which has zero relevance to the subject at hand (which should at least put us on the same page, if only by virtue of the shared relevance of our posts).

    Please loudly advocate for your candidate of choice at every opportunity. You are the best possible advertisement for the other side.

  61. Bithead says:

    So, both of you are saying our laws should apply to all men, then. And to what extent are we willing to pursue that policy, gents?

    For example, do we declare war on (insert country here) because they don’t respect what we view as the rights of it’s citizens?

    You call it what you will, guys, but the rights of which you speak are, objectively, cultural constructs and meaningless outside that construct. Did they, for example apply to the Indian? More or less, but only in those cases where the indian had adopted our culture. And the black man was never adopted INTO our culture, during the revolutionary years. Clearly, there were conditions placed on the rights of which you speak.

  62. Michael says:

    So, both of you are saying our laws should apply to all men, then.

    Perhaps you should read our comments again, and again if you have to, because you somehow are failing to comprehend what appears to be a rather simple concept: Rights apply to all men, laws are enacted to preserve them.

    For example, do we declare war on (insert country here) because they don’t respect what we view as the rights of it’s citizens?

    We’ve been having that debate in our country since it’s foundation. But what we’ve never debated (before now) is whether or not the US government should acknowledge the rights of those foreign citizens, even if their government did not.

    You call it what you will, guys, but the rights of which you speak are, objectively, cultural constructs and meaningless outside that construct.

    And I thought you were a Jeffersonian.

    Did they, for example apply to the Indian? More or less, but only in those cases where the indian had adopted our culture. And the black man was never adopted INTO our culture, during the revolutionary years. Clearly, there were conditions placed on the rights of which you speak.

    And yet Jefferson, in his personal writing, clearly meant that those rights extended to the black man as well. So too did Adams, indeed a large number of our founders felt that way.

  63. Bithead says:

    Perhaps you should read our comments again, and again if you have to, because you somehow are failing to comprehend what appears to be a rather simple concept: Rights apply to all men, laws are enacted to preserve them.

    For example, do we declare war on (insert country here) because they don’t respect what we view as the rights of it’s citizens?

    We’ve been having that debate in our country since it’s foundation.

    Then if that debate has been going on for that long, it seems clear there have been some misconceptions over what the founders actually intended, WRT rights applying to “all men”. Which, in turn would seem to be of a peice with the inconsistancies I’ve already noted. If the writing can be taken literally as opposed to contextually, then the argument wouldn’t exist at all, much less two and a half centuries later.

    And yet Jefferson, in his personal writing, clearly meant that those rights extended to the black man as well. So too did Adams, indeed a large number of our founders felt that way.

    That’s right enough. But if you read their work (And that of their contemporaries) more closely, you will note that, too, was of the assumption of them accepting and adopting the culture. And lest we lose sight of the original discussion that got us here, they most certainly didn’t apply to those actively engaged in trying to destroy that culture.

  64. Bithead says:

    Correction:
    /actively engaged / violently engaged/

  65. Michael says:

    Then if that debate has been going on for that long, it seems clear there have been some misconceptions over what the founders actually intended, WRT rights applying to “all men”.

    No, the debate was never about whether they applied, the debate was about whether the US should spend it’s resources protecting the rights of foreign nationals on foreign soil. Some believed that the US should be militarily involved in spreading democracy abroad, others believed that the US should look after it’s own affairs, and not become entangled in foreign wars. Never was the question asked about whether foreigners were entitled to the same rights as Americans.

    That’s right enough. But if you read their work (And that of their contemporaries) more closely, you will note that, too, was of the assumption of them accepting and adopting the culture.

    That was the assumption in order to give them the protection of the law, not to give them the rights in the first place. As Jefferson said, rights are “inherent”, not gained.

    And lest we lose sight of the original discussion that got us here, they most certainly didn’t apply to those actively engaged in trying to destroy that culture.

    They most certainly did, as evidenced by John Adam’s insistence that the British troops involved in the Boston Massacre were entitled to a fair trial.

  66. Bithead says:

    No, the debate was never about whether they applied, the debate was about whether the US should spend it’s resources protecting the rights of foreign nationals on foreign soil

    And if not, what it comes down to is it doesn’t apply, in reality. Wow… reality… what a concept!

    If you’re going to claim a particular principle, it doesn’t amount to much if you’re going to claim you can’t afford to make it happen.

    And at that point, what ARE your principles?

  67. Michael says:

    If you’re going to claim a particular principle, it doesn’t amount to much if you’re going to claim you can’t afford to make it happen.

    That was the argument made by the non-isolationists. I just don’t happen to agree with it.

    And at that point, what ARE your principles?

    I am a pragmatist. I believe that everyone has certain inherent and unalienable rights, but I recognize that not only is the US incapable of defending the rights of every person on earth, not every person on earth wants the US to defend their rights.

    The US government should preserve and protect the inherent rights of any person under it’s authority, without expending blood and treasure trying to gain authority of other persons for the purpose of protecting their rights.

  68. Bithead says:

    Fine, So, then even by your lights, there are conditons to be met. contexts to be within.

    Understand what I’m driving at here. You’re arguing an absolute. I’m suggesting the absolute you attribute to the founders was nowhere near their thought.

    And by the way, isn’t pragmatism by it’s nature, given to arguing against absolutes?

  69. Michael says:

    Fine, So, then even by your lights, there are conditons to be met. contexts to be within.

    There are conditions and contexts that determine when the US is responsible for protecting rights, not for the existance of the rights themselves.

    And by the way, isn’t pragmatism by it’s nature, given to arguing against absolutes?

    No, pragmatism recognizes absolutes, it just doesn’t create the false dichotomy between perfection and inaction. Pragmatism says that all men inherently have certain rights, but I can only protect the rights of some of those men.

    Slavery wasn’t abolished in the Declaration of Independence(*), not because Jefferson didn’t think black people had rights, but because he new that if given the choice between emancipation and monarchy, the country would stick with monarchy. Being pragmatic, Jefferson decided that liberty for some was better than liberty for none.

    (*)In Jefferson’s first draft, he listed the slave trade as one of the worst evils inflicted on the colonies by King George.

  70. Bithead says:

    No, pragmatism recognizes absolutes, it just doesn’t create the false dichotomy between perfection and inaction.

    http://encarta.msn.com/encyclopedia_761571095/pragmatism.html

    Pragmatism calls for ideas and theories to be tested in practice, by assessing whether acting upon the idea or theory produces desirable or undesirable results. According to pragmatists, all claims about truth, knowledge, morality, and politics must be tested in this way. Pragmatism has been critical of traditional Western philosophy, especially the notion that there are absolute truths and absolute values.

    Note particularly the last line, my own emph added.

    Apparently there’s some disagreement among the faithful.

    By the lights of this author, there are no absolutes, and one could suppose not absolute rights, either.

  71. Michael says:

    Apparently there’s some disagreement among the faithful.

    Okay, so I’m mis-using the label, for lack of a better one. I believe it is better to do what can be done, even if it will fall short of what should be done, than to do nothing. The perfect is the enemy of the good.

    Here are some points of my philosophy to hopefully clear things up for you:

    I believe that all men have inherent rights that should be universally protected.
    I recognize that it is not in my power, or the power of my country, to protect the rights of everybody.
    I would rather that my country protect my rights, and the rights of those it has authority over, than not protect any
    Just because my country doesn’t protect someone’s rights, doesn’t mean that my country doesn’t acknowledge the existence of that person’s rights
    Should that person come under the authority of my country, his rights also come under the protection of my country

    Is that a better explanation?

  72. Bithead says:

    I believe that all men have inherent rights that should be universally protected.
    I recognize that it is not in my power, or the power of my country, to protect the rights of everybody

    You seem to have a little self-conflict issue.

    Is that a better explanation?

    Somewhat, (And it’s agood try) but it still seemingly has a little trouble meshing with reality. As an example:

    I believe it is better to do what can be done, even if it will fall short of what should be done, than to do nothing. The perfect is the enemy of the good.

    I seem to recall the Administration and it’s defenders making this exact argument as regards their duty of protecting American citizens from their attackers, when balanced against protecting the civil rights of those attackers.

  73. Michael says:

    You seem to have a little self-conflict issue.

    How so?

    I seem to recall the Administration and it’s defenders making this exact argument as regards their duty of protecting American citizens from their attackers, when balanced against protecting the civil rights of those attackers.

    And it was a fine argument for them to make. If the choice is between protecting the rights of Americans, and protecting the rights of Afghans, I would want the US government to protect the rights of Americans.

    However, that doesn’t mean that I want the US government to claim that the Afghan had no rights, or that the US government shouldn’t protect his rights if it can do so with restricting the rights of Americans.

    Basically what I’m saying is, I’d rather the US government justify treating a human inhumanely, than for the US government to decide that they are not human, and therefore not deserving of humane treatment. The former is bad, the latter is evil.

  74. Michael says:

    s/with restricting/without restricting/ in the second paragraph.

  75. DOUGLAS FIELD says:

    SENATOR OBAMA,PLEASE ALSO GIVE AMERICA A DOSE OF REALITY CONCERNING THIS US HORROR ???

    LETS ALL HOPE OUR MEDIA FRIENDS CONTINUE TO ALSO SHOW AN INTEREST IN REPORTING ON THIS AMERICAN HORROR FACING THESE (TENS OF THOUSANDS) FORGOTTEN AND TRAPPED POORER AMERICANS, AND HOW THIS PRESIDENTIAL CONTENDER HANDLES THIS VERY SERIOUS ISSUE FACING AMERICA’S LATINO AND BLACK AMERICAN COMMUNITIES ????

    WITH 80% OF THE BLACK AMERICAN VOTERS SAYING THEY SUPPORT SENATOR OBAMA IN THIS PRESIDENTIAL ELECTION, IT IS ONLY FAIR FOR EVERYONE TO KNOW PRIOR BEING ELECTED OUR NEXT PRESIDENT OF THE UNITED STATES HOW THIS DEMOCRATIC SENATOR TRULY FEELS ABOUT THIS AMERICAN JUDICIAL HORROR CONTINUING TO INFLICT GRAVE HARM ON THE BLACK AMERICAN FAMILIES AND THEIR COMMUNITIES NATIONWIDE ??????

    *** WHEN GOD’S FACE BECAME VERY RED ***
    THE US SUPREME COURT GAVE ENEMY COMBATANTS FEDERAL APPEAL HC RIGHTS LAWYERS AND PROPER ACCESS TO US FEDERAL COURTS,AND POORER AMERICANS (MANY EVEN ON DEATH ROW) ARE DENIED PROPER FEDERAL APPEAL LEGAL REPRESENTATION TO OUR US FEDERAL COURTS OF APPEAL, AND ROTTING IN AMERICAN PRISONS NATIONWIDE ?????????

    ***THE AMERICAN PEOPLE ARE $LOWLY FINDING OUT HOW EA$Y IT I$ FOR MIDDLE CLA$$ AND WORKING POOR AMERICAN$ TO FALL VICTIM TO OUR U$ MONETARY JUDICIAL $Y$TEM.

    ****WHEN THE US INNOCENT WERE ABANDONED BY THE GUILTY ****
    The prison experts have reported that there are 100,000 innocent Americans currently being falsely imprisoned along with the 2,300,000 total US prison population nationwide.
    Since our US Congress has never afforded poor prison inmates federal appeal legal counsel for their federal retrials,they have effectively closed the doors on these tens of thousands of innocent citizens ever being capable of possibly exonerating themselves to regain their freedom through being granted new retrials.

    This same exact unjust situation was happening in our Southern States when poor and mostly uneducated Black Americans were being falsely imprisoned for endless decades without the needed educational skills to properly submit their own written federal trial appeals.

    **INNOCENT AMERICANS ARE DENIED REAL HC RIGHTS WITH THEIR FEDERAL APPEALS !!
    This devious and deceptive judicial process of making our poor and innocent prison inmates formulate and write their own federal appeal legal cases for possible retrials on their state criminal cases,is still in effect today even though everyone in our US judicial system knows that without proper legal representation, these tens of thousands of innocent prison inmates will be denied their rightful opportunities of ever being granted new trials from our federal appeal judges!!

    Sadly, the true US *legal* Federal Appeal situation that occurs when any of our uneducated American prison inmates are forced to attempt to submit their own written Federal Appeals (from our prisons nationwide) without the assistance of proper legal counsel, is that they all are in reality being denied their legitimate rights for Habeas Corpus and will win any future Supreme Court Case concerning this injustice!

    For our judicial system and our US Congressional Leaders Of The Free World to continue to pretend that this is a real and fair opportunity for our American Middle Class and Working Poor Citizens, only delays the very needed future change of Federal Financing of all these Federal appeals becoming a normal formula of Our American judicial system.

    It was not so very long ago that Public Defenders became a Reality in this country.Prior that legal reality taking place, their were also some who thought giving anyone charged with a crime a free lawyer was a waste of taxpayers $$.

    This FACADE and HORROR of our Federal Appeal proce$$ is not worthy of the Greatest Country In The World!

    ***GREAT SOCIETIES THAT DO NOT PROTECT EVEN THEIR INNOCENT, BECOME THE GUILTY!

    A MUST READ ABOUT AMERICAN INJUSTICE:
    1) YAHOO AND 2) GOOGLE
    MANNY GONZALES THE KID THAT EVERYONE FORGOT IN THE CA PRISON SYSTEM.
    ** A JUDICIAL RIDE OF ONES LIFE !

    lawyersforpooramericans@yahoo.com
    (424-247-2013)