Heh, wouldn't it be ironic to use Dred Scott to give the Gitmo detainees rights?
Posted by iamcoyote at March 26, 2007 02:45 PMNotwithstanding Dred Scott, it is absurd that the Constitution is not supposed to control those spaces in the world where the US government has exclusive control should not ruled by the document that creates the US Government that controls those spaces.
It takes some pretty authoritarian and warped minds to deign to create a place with a total legal vacuum so one can torture at will. Such minds are criminal and should be caged.
Posted by Nobody at March 26, 2007 03:03 PMNice piece. I find it completely readable. And I think that the argument is timely and important. The fact that a good argument is applied to bad ends does not necessarily make the argument bad.
My own argument about the Constitution's reach is that it reaches wherever it can without violating the soveriegnty of another nation. This is because its protectinos exist not as a courteousy to US citizens, rather, they exist above and beyond law. They exist in a realm that is metalegal, one whose truths are assumed intrinsic to humanity and all civil society. They do not exist as a grant of government.
So the Constitution protects all Americans wherever they are in the world. When this location is on foreign soil, those protections may be subject to local authority. If America has a military base on foreign soil, however, local authority usually cedes some local authority to Americans.
Similarly, the Constitution would protect all foreigners on American soil as if they were Americans. Not just for the civilizing reasons of reciprocity, but because of the Constitution's view that rights exist outside the bounds of law. A person is a person regardless of citizenship. And rights exist by virtue of being human being, not by virtue of being a citizen. They are not granted by law or by the Constitution, they are merely acknowledged by it. ( I know many people with legal training may see this last bit differently.)
If Gitmo actually were a part of Cuba, then all the military personnel there would be subject to Cuba's local laws. Cuba insists that Americans are not welcome and wishes they would leave. But they don't. The simple act of occupying hostile territory is a de facto claim to that territory. Every single member of the US government could swear on a mile high stack of bibles that Gitmo was Cuban territory, but it would not be so while it is occupied by unwelcome American soldiers. Because it is American territory, Americans and foreigners alike fall under the authority of the US Constitution and US law at that location. It simply cannot be otherwise. Frankly, I am surprised that the administration got away with claiming otherwise for more than about three nanoseconds.
The whole reason, I believe, that the administration tried to argue otherwise was to create a class of people who were outside the protections of the Constitution. ( see also the Gonzales Doctrine ..." not all people have habeus corpus rights.." ) And if the administration succeeds, it is just a matter of time before political adversaries fail to have these protections. All the legal machinery is in place to accomplish this. All put there by this administration.
Posted by steve at March 27, 2007 03:03 AM