|
|
Post by Nathan Morrison on Jan 16, 2007 17:49:18 GMT -5
Hello P&M Crew! I just read this article by Cody about the history of Lawyers and the importance of the 6th Amendment. It's very well done, and I felt it needed posting here in the Constitutional Debate Forum. Cody can be reached at: cmolica@sonic.net, with comments... The Colossal Ignorance of the Neo-Con Right. 1-15-07 - By Cody Molica, Political News Columnist, Powers&Morrison.com Run into the common republican on the street and ask him/her if they believe that their party respects the Constitution of the United States better than the democrats and they will laugh at you. "Why of course we respect the Constitution more than you liberals' boy, what are you thinkin"? That belief is completely unfounded backed up by zero articulate facts; recently a senior Pentagon official in charge of military detainees (notice they don't call them prisoners of war) suspected of terrorism said in an radio interview that he was dismayed that many of the country's top lawyers are moonlighting as pro bono lawyers for prisoners at Guantanamo Bay. This ignorant lawyer's name is Charles Stimson, who happens to be the deputy assistant secretary of defense for detainee affairs. Stimson goes on while doing his libelous interview on the pro government "Federal News Radio" to quote the names of the firms' representing detainees and makes the assertion that those firms' corporate clients should consider ending their business ties with said companies. Later Stimson is backed up by Robert Pollock, a member of the Wall Street Journal's newspaper's editorial board, stating "Corporate CEOs seeing this should ask firms to choose between lucrative retainers and representing terrorists." Conservative commentator Monica Crowley has submitted a Freedom of Information Act request in order to ascertain the names of all the firms currently representing Guantanamo Bay detainees. My point is this, the United States of America was founded not only on the principle of the representation of counsel at government expense for all criminal conduct but also that representation would amount to the effective representation of counsel. For an example the Sixth Amendment United States Constitution bears repeating. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense." (tell this to Noriega) How a lawyer could have missed all of this is simply a feat beyond my finite comprehension of things; not to mention a lawyer who slept through Constitutional Law class and woke up a senior Pentagon official. Perhaps his incompetence reflects a greater degree of incompetence for the entire Pentagon, which handled it's intelligence so haphazardly that some renegade terrorists operating out of a cave in a backwards country were able to fly a jetliner into their headquarters. Ergo Conservatives I give you the complete and total incompetence of government, you. Furthermore it should be noted on a historical front that our second president of the United States, John Adams at one time was quite the man of controversy. On March 5, 1770, two privates in the British 29th Regiment of Worcestershire named Hugh White and Hugh Montgomery, played central roles in what would be eventually called the Boston Massacre. During a time when tensions between the colonies and mother England were fringent, a dispute between a local wigmaker's apprentice and Hugh White over a certain debt ensued. Later White decided to strike the young wigmaker with his musket which prompted the assembly of the local mob. Within minutes the unruly crowd drew the attention of the rest of White's regiment and after a confusion of snowballs, ice chunks, and coal rained down on the British soldiers, someone (later determined to be Hugh Montgomery) yelled "fire" and five Americans were mortally wounded. [http://www.law.umkc.edu/faculty/projects/ftrials/bostonmassacre/keyfigures.html] As you might tell the public was pissed and demanded justice, but who would come to defend such unsavory characters? The next day at the behest of a local merchant, John Adams a prominent lawyer at the time decided to take the case. In exchange he received a modest sum for the price he would pay, half of his business disappeared as the locals decided to boycott his firms services. (sounds familiar?) Nevertheless unfettered Adams defended the perpetrators bravely because he believed deeply that every person deserved a defense. [http://www.law.umkc.edu/faculty/projects/ftrials/bostonmassacre/keyfigures.html] In the end the jury acquitted six of the eight soldiers tried, while two (Montgomery and Killroy) were convicted of the lesser charge of manslaughter and branded on their thumbs. Quite a victory for the perpetrators, the guilty if you will, at a time in American history where Draconian punishment was being handed out left and right. Adams later reminisced in his old age calling the defense of British soldiers in 1770 "one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country." That’s quite a statement given the Boston soldiers were guilty as charged and Adams won them an acquittal. In 1949 the notes of Thomas Hutchinson revealed that it was Montgomery who fired the first shot. [http://www.law.umkc.edu/faculty/projects/ftrials/bostonmassacre/keyfigures.html] [http://www.bostonmassacre.net/index.html] [http://en.wikipedia.org/wiki/Boston_Massacre] So here we have the second president of the United States engaging in the vigorous defense of the accused regardless of whether or not they are innocent or guilty. In Gitmo the case can be made that unlike the Boston Massacre, most of these detainees' cannot be tried because there is no evidence! No witnesses, and in the vast majority of the cases there, no indictments. [See www.ccr-ny.org/v2/home.asp] These people in Gitmo don't even know what they are being held for. This is an egregious violation of the Constitution. "and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense." - Sixth Amendment United States Constitution. "This is prejudicial to the administration of justice... it's possible that lawyers willing to undertake what has been long viewed as an admirable chore will decline to do so for fear of antagonizing important clients." Said Stephen Gillers, a law professor at New York University, and an authority on legal ethics. Even the notorious pro-torture neo-con Attorney General Alberto Gonzales said he had no problem with attorneys representing Gitmo detainee's stating that "good lawyers representing the detainees is the best way to ensure that justice is done in these cases." So the question we must ask ourselves is WWAD; what would Adams do? So next time some hypocrite neo-con goes on a tirade about how his party is the guardian against encroachments to the Constitution give him a dose of this story, chances are he's never heard of it. Tell me something that isn't new. |
|
|
|
Post by realdre on Jan 16, 2007 18:57:13 GMT -5
You have got to be joking...I went through this last year about how the US Constitution does not apply to non-US citizens.....
|
|
|
|
Post by realdre on Jan 17, 2007 16:51:43 GMT -5
Okay Cody, this is for you I've found my writings...Im going to answer this question again..at great length...
Im making two basic points here....1) Detainee's Have No Constitutional Rights (US), 2) Such rights only apply to Citizens with regard to (US Law)...
International Law I'll leave off for now...but in my view that doesn't count as Im sure Nathan would tell you my opinions on that and especially, why.
Taken from my July 10th, 2006 posting...
Currently, there is a debate going on as to whether or not detainees at Guantanamo Bay in Cuba have any rights, civil liberties, whichever language best suits you. The fact of the matter is simple. They have NONE as far as Constitutional protections. International law is another matter which shall be discussed in part II of this expose. The Constitution of the United States of America was intended for citizens of the United States of America ONLY. In just reading over the documents this is clearly evident. Understand the Declaration of Independence is a resolution, it is and never has been LAW. There is a distinct difference between the two. One is legal the other is not.
One must understand that the problem often with fundamental questions is that there is more than one fundamental answer always.--RealDre…
However, there is a difference between a privilege and a right.
Privilege- a law for or against a private person. A right or immunity granted as an advantage or favor esp. to some and not others. Having or enjoying privileges.
Right- something (as a power or privilege) to which one has a just or lawful claim.
That being said none of rights guaranteed to the CITIZENS of the United States of America are to be or shall ever be exercised amongst persons whom are not citizens of this nation. The word citizen does not appear until the 14th amendment to the US Constitution.
Citizen- a person who owes allegiance to a government and is entitled to its protection.
In this case allegiance to the United States government and its laws and more important and above all other the US Constitution.
The 14th amendment states specifically the following; “…make or enforce any law which shall abridge (to lessen) the privileges or immunities of citizens of the United States”. Now in reading just this first part of the amendment it would be most logical and consistent to the Constitution that all rights and privileges granted by the Constitution is expressly implied. It is laid out here as to strengthen and legitimately cover any loose ideals that may exist as the to intention and application of these rights and privileges and to whom they apply too as well, in this case the CITIZENS of the United States, SOLEY. In further reading down the line of section 1 of the it is stated “ nor deny any person within its jurisdiction the equal protection of the laws”.
Some will banter about and state that well this challenges everything I am saying. To them I will state simply not so fast. “Within its jurisdiction”. Those three words are the key to this entire matter. Jurisdiction means the following;
Jurisdiction- the power, the right, the authority to interpret and apply the law. The authority of a sovereign power, the limits or territory within which authority may be exercised.
All being said the right to a speedy trial, right to counsel, right to privacy, right from self incrimination, right to freedom of expression, right to not be punished cruel and unusually (which constitutionally is vague by the way, or rather undefined), right to arms, right to vote, right from double jeopardy, right to drink, all of these apply to CITIZENS only. That means every detainee under US law has no rights, privileges or immunities to be applied to their cause.
Article IV Section 2 of the United States Constitution states “The Citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several states”. Just as a reminder to the above.
It has been argued by some of my colleagues that the United States of American, namely Bush II in this matter is in violation of Article VI Section 2. Article VI Section 2 states; “The Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land;”
The Constitution of the United States of America is the Supreme Law of the Land. It is specifically mentioned in this article. As far as Treaties signed are concerned they are to put it bluntly second fiddle or backseat driver to the US Constitution. Therefore, since the US Constitution is the supreme law of the land and there can be nothing higher, all international laws and treaties do not matter at as far the supremacy clause is concerned. Any treaty signed under the authority of the United States government is only effective if and only if, and when it does not conflict with the US Constitution.
If one is to think we are alone on this matter think again, as an example I will be using Canada.
The Canadian charter of rights states very closely mirrors our own US Constitution. A few differences with regard to language but intent nonetheless is extremely similar.
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society
2. Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.
3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada. Rights to move and gain livelihood (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
a) to move to and take up residence in any province; and
b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Search or seizure 8. Everyone has the right to be secure against unreasonable search or seizure. Detention or imprisonment 9. Everyone has the right not to be arbitrarily detained or imprisoned. Arrest or detention 10. Everyone has the right on arrest or detention …
a) to be informed promptly of the reasons therefore;
b) to retain and instruct counsel without delay and to be informed of that right; and
c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Proceedings in criminal and penal matters
11. Any person charged with an offence has the right
a) to be informed without unreasonable delay of the specific offence;
b) to be tried within a reasonable time;
c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
e) not to be denied reasonable bail without just cause;
f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
Treatment or punishment
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
Self-crimination
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. Interpreter 14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. Equality before and under law and equal protection and benefit of law 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability. Affirmative action programs (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, color, religion, sex, age or mental or physical disability.
Now there is an inherent difference between the Canadian charter and the US Constitution. Their protections apply to those whom are also not citizens as far as rights, as well privileges and how they define it. The US Constitution is completely different in this regard. In fact it is the opposite. Canadians say all laws with regard to rights and equality apply to all, US states to citizens only. That is the difference simply. As well they have a specific provision in their charter that recognizes international law and keep in mind there is no mention of the supercede powers of the Canadian charter over international law is another key point that is central.
International Law
Many have stated that the US government namely the executive branch have violated international law, more specific the Geneva Convention of 1949.
The charges are that the US government has violated the following sections;
Article 4
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labor units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
Article 5
The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. Please define competent tribunal beyond the two rational definitions that exist…
To be perfectly fair and honest about this situation members rather that would be members of Al Qadea fill this description without question. The key provision as stated in Article 5 states they shall enjoy the protections until their status has been determined by a competent tribunal. Now it does not state a time limit or how long it should take to form a competent tribunal or how soon too bring up actual charges. This a flaw that exists. Of course as mentioned in previous articles of the Geneva Conventions there is supposed to be a freedom from being unreasonably detained.
Well here is a simple question….
When you have a conflict globally with an undefined enemy where all member of this group are not fully known nor subscribe to normal military engagements or garb for that matter, how do you fight such an undefined unified enemy?
It is my opinion that the war against terrorism and Al Qadea is and was not an easy one, nor war or insurrection, or occupation ever is. With no exit strategy, not enough soldiers to quell a rebellion, not enough supplies, and definitely not enough money or support, it never is. So it should not have come to a shock to anyone albeit right, left, liberal, conservative that with no defined enemy this was going to be anything but a simple complicated disaster of utter proportions. People should not be shocked that atrocities have been and are being committed. To be frank this is nothing new. In the Revolutionary War we had atrocities, the Civil War, Korea, WWI, WWII, Vietnam. I do not nor have I ever condoned that people of any kind citizen or not be tortured. I would hope that these people that are detained would have the charges against them read to them so that they know and can mount a proper defense.
To say that they are entitled to this under US Law, NO. Under the Geneva Conventions, YES. Since they are being held at Guantanamo Bay in Cuba, it is a military base, it is therefore US soil. And as such since they are not US citizens, the Geneva Conventions apply to them NOT the Constitution here, the second fiddle of laws kicks in end of story.
|
|
|
|
Post by realdre on Jan 17, 2007 16:56:41 GMT -5
|
|
|
|
Post by Nathan Morrison on Jan 17, 2007 17:18:54 GMT -5
Dre's back! Woo Hoo!  I'll keep this short, because Dre and I have had this argument many times Dre has a valid point when discussing Gitmo detainees that are not US citizens, that the Constitution (and the rights afforded to citizens under the constitution) are not legally applicable. International Law (which is respected by the Constitution) does provide these rights to foreign nationals being detained by the US. BUT Dre is also correct that it's a different argument. THE ONLY point I really want to make here, is that Gitmo houses both foreign nationals AND American citizens. Neither group has been afforded Miranda or Constitutional Rights. In the case of the former group. the foreign nationals captured overseas, the constitution can not be applied as these individuals are not citizens of the United States. International law DOES apply, both to these individuals AND to the United States regarding it's treatment of these individuals. Pertaining to the latter group, of American Citizens being held at Gitmo, Miranda and Constitutional Rights do apply, and are whole and valid. In this case, Cody is correct. Perhaps when discussing this topic, we all need to remember that both groups of individuals are being detained at Gitmo. Both groups of individuals comprise human beings, and all those human beings are subject to law. While Dre may disagree, since he doesn't particulalry like the fact that International Laws trump National Laws, the fact is still true, and (this is the most important part) IF the suspected individuals of EITHER Group are indeed guilty of a crime, allowing these individuals the right to a fair trial DOES NOTHING to detract from a legally valid ruling. In fact, allowing these individuals due process would only Validate the process of jurisprudence. If we want to jail these people for a crime, due process is the only way to do it! The only motivation I could understand for not allowing these individuals due process would be if we never intended to try their case at all (which seems evident in the history of Gitmo). Also, one quick point that I'm not sure on, but want to just throw out there for Dre. Since Gitmo is technically not on US Soil, wouldn't it necessarily be subject to the jurisdiction of International Law simply by being? Isn't that the pretext of P.O.W. laws in general? Anyway, good to see these things being discussed! -Nathan |
|
|
|
Post by Nathan Morrison on Jan 17, 2007 17:22:13 GMT -5
a clarification, International Laws don't trump national ones, unless that country is a signatory to the law or subject by world majority vote to it's passing.
In this specific instance, the US is a signatory to the Geneva Conventions.
And yes, it's still a wholey different argument LOL.
|
|
|
|
Post by realdre on Jan 17, 2007 22:39:09 GMT -5
Okay, youre asking specifically about Guantanamo Bay in Cuba.
The United States controls the land on both sides of the southern part of Guantánamo Bay (Bahía de Guantánamo in Spanish) under a lease set up in the wake of the 1898 Spanish-American War.
The Cuban government denounces the lease on grounds that article 52 of the 1969 Vienna Convention on the Law of Treaties voids treaties procured by force or its threatened use.
The Platt Amendment was a rider appended to the Army Appropriations Act, a United States federal law passed on March 2, 1901 that stipulated the conditions for the withdrawal of United States troops remaining in Cuba since the Spanish-American War, and defined the terms of Cuban-U.S. relations until 1934.
Formulated by the U.S. Secretary of War Elihu Root, the amendment was presented to the Senate by, and named for, Connecticut Republican Senator Orville H. Platt (1827-1905). It replaced the earlier Teller Amendment.
The amendment ceded to the United States the naval base in Cuba (Guantánamo Bay), stipulated that Cuba would not transfer Cuban land to any power other than the United States, mandated that Cuba would contract no foreign debt without guarantees that the interest could be served from ordinary revenues, ensured U.S. intervention in Cuban affairs when the United States deemed necessary, prohibited Cuba from negotiating treaties with any country other than the United States "which will impair or tend to impair the independence of Cuba" or "permit any foreign power or powers to obtain ... lodgement in or control over any portion" of Cuba, and provided for a formal treaty detailing all the foregoing provisions.
Later in 1901, under U.S. pressure, Cuba included the amendment's provisions in its constitution. After U.S. President Theodore Roosevelt withdrew federal troops from the island in 1902, Cuba signed the Cuban-American Treaty (1903), which outlined U.S. power in Cuba and the Caribbean. Tomás Estrada Palma, who had earlier favored outright annexation of Cuba by the United States, became president on May 20, 1902.
Following acceptance of the amendment, the United States ratified a tariff pact that gave Cuban sugar preference in the U.S. market and protection to selected U.S. products in the Cuban market. As a result of U.S. action, sugar production came into complete domination of the Cuban economy, while Cuban domestic consumption was integrated into the larger market of the United States.
Except for U.S. rights to Guantánamo Bay, the Platt Amendment provisions, which many Cubans considered to be an imperialist infringement of their sovereignty,[1] were repealed in 1934, when a new treaty with the United States was negotiated as a part of U.S. President Franklin D. Roosevelt's "Good Neighbor policy" toward Latin America.
The long-term lease of Guantánamo Bay still continues, and according to the treaty that right can only be revoked by the consent of both parties.
The Cuban government strongly denounces the treaty on grounds that article 52 of the 1969 Vienna Convention on the Law of Treaties declares a treaty void if its conclusion has been procured by the threat or use of force.
The Cuban government strongly denounces the treaty on grounds that it violates article 52, titled "Coercion of a State by the threat or use of force", of the 1969 Vienna Convention on the Law of Treaties.
However, this article declares a treaty void only if its conclusion has been procured by the threat or use of force in violation of international law.
Its funny to mention though...
The Cuban-American Treaty gave, among other things, the Republic of Cuba ultimate sovereignty over Guantánamo Bay while granting the United States "complete jurisdiction and control" of the area for coaling and naval stations.
U.S. troops placed 75,000 land mines across the "no man's land" between the U.S. and Cuban border, creating the second-largest minefield in the world, and the largest in the Western Hemisphere. On May 16, 1996, U.S. president Bill Clinton ordered their removal. They have since been replaced with motion and sound sensors to detect intruders. The Cuban government has not removed the corresponding minefield on its side of the border.
And it was not procured by force, so ergo....
The Cuban government of the early 20th century signed this agreement not under force because our troops were already pulled out and gone. Off the island. We let them into our sugar market to get "access and privilege" basically, and we wanted to have a base there. Now they may not cash the checks but they have on prior occassion, and even if they do not...it can only be removed if both parties agree to do so...so if they are against it, it doesnt matter so as long as the US says we are staying.
Since coming to power in 1959, Cuban dictator Fidel Castro has refused to cash all but the very first rent cheque in protest. But the United States argues that its cashing signifies Havana's ratification of the lease ,and that ratification by the new government renders moot any questions about violations of sovereignty and illegal military occupation.
|
|
