10-26-2006, 01:24 PM | #51 | |||||
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Continuing now with your last post: Quote:
So (1) do we ever have the right to kill that person (I have to assume you will say yes) and (2) if we don't kill him why is depriving him of due process more offensive to a notion of natural rights than killing him is? There may be other good reasons, but remember we're just talking about natural rights. Quote:
2. You can't turn that question around on me because I have not made the argument that a government has to protect the rights of "ALL." Just the opposite. I have said that the government owes the protection of those rights to the governed primarily, so from my theoretical framework, when you have a situation like the US Civil war where the south secedes, it has opted out of the social contract and its people are no longer among the governed. Their new government is now the defender of their rights. In the much more common form of civil war in modern times what you really have is either no government or a faction controlling the government. This scenario is not cleanly dealt with by the idea of of a social contract because there really is none. Same is true during a revolution. This is the limitation of that concept. 3. I'm not going to get too excited over your concept of "securing the rights of the people" because it is almost as nebulous as "within our grasp." Unless we talk about what rights are included there then you can justify almost anything under that notion. Some people think we have a right to inexpensive oil for example and tried very hard to get price caps imposed this year. A very small leap to say we are entitled to kill to ensure our supply, if you define that as a right. Just one example. Quote:
I suggest that we now move on to talk about who is "in our grasp." Why don't you start with answering my question above about when the enemy soldier we may justifiably kill "comes within our grasp" and why and when from a natural rights perspective he gains entitlement to due process.
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10-26-2006, 06:32 PM | #52 | ||
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I freely admit this conversation involves some ambiguity. Of course it does! I have said as much earlier in this thread as well (and we are starting to rehash some of the arguments that have already been debated earlier, so I recommend you read those posts rather than ask for information that is already available). We are dealing with natural rights. You appear to accept the premise that people do hold natural rights. Isn't the very concept of natural rights ambiguous? Which rights are natural rights? Only the three listed in the Declaration of Independence? Hard to accept that proposition, since Jefferson argues that those listed are "among" others. Locke gives property as one; Jefferson does not. The entire debate is based on a theoretical principle. Arguing about how to apply a certain situation in the abstract will only lead to more ambiguity. The best we can do is argue that, based on the facts before us, the theory dictates a certain outcome (and we both appear to agree on that outcome). As to your question about killing a person v capturing them, yes, I accept that killing someone on the battlefield is appropriate. In that moment, a person is presented with exigent circumstances that dictate an immediate decision- kill or don't kill. Not killing could very well lead to the death of the ponderer or his comrades. When a person is captured (comes within our grasp) those circumstances disappear. The person is not an immediate threat. We have a responsibility to respect their natural rights at that point (i.e., must afford them due process). You could ask the very same question with those in our government compact: why is it that you could kill an intruder in your home if you felt threatened but you would have to give them due process if the police came and captured the intruder? Your argument with the civil war is interesting (though it isn't the position the US took in the Civil War). As to this: Quote:
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10-26-2006, 10:51 PM | #53 | |
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Anyway, I would just say as to the ambiguities of it all that principles like natural rights are only useful tools if they lead us to apply them in someway. That is why I was trying to get you to define and defend your notion of "within our grasp." Once you finally did that, I thought the distinction you drew about present exigencies vs. when the exigencies abate was pretty persuasive. Maybe this is because it is what I think too. :-) Now we move to the real issue that our government has to grapple with: having been told by the supreme court that these folks must get due process, how do we do it? How much due process is enough? Does it have to be identical to what you and I get? In one respect it will always be inferior to what we would get: they will never be tried by a jury of their peers. In what other ways would "less" due process be permissible? What is the cost benefit here? I at least give the president some credit for proposing an alternative once he was defeated in his original position (which by the way I think he COULD have maintained and ignored the courts on, though I'm glad he didn't).
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10-26-2006, 11:56 PM | #54 | |
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As to your questions re what due process should be afforded, I have also already touched on this previously in this thread (and perhaps the reason you are not understanding the context of the discussion is because you have not taken the time to read the rest of the thread- not that I blame you, it is quite lengthy by now). From a natural rights perspective, the detainees would not be entitled to a certain form of due process, IMO. They would be entitled to a fair process. I believe our natural rights guarantee us a right to a fair form of process rather than a specific form of process. This answer doesn't entirely say what the US should do, however, under constitutional principles (which was the basis for the Court's ruling). Do they deserve the same due process you or I would receive? I doubt it. We have expanded on the concept of "fairness" and created a large regime of rules that only do apply to those within our social compact. We are entitled to do that. What we are not entitled to do is provide LESS than what they should receive under their natural rights. If a military trial can be fair to the detainees, then it would be an acceptable form (as the Court has stated as well under constitutional principles). BTW, when were you wrong on this board? |
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10-27-2006, 03:53 PM | #55 | |||
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Frequently, and most of the time I'm not even aware of it.
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10-27-2006, 06:21 PM | #56 | |
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As for this administration, they are only dealing with it because they DID have to (once their hand was forced by the Supreme Court). If not for that, these people would be sitting in a prison cell without a second thought to fair treatment or their rights. I don't give the administration any credit for doing what they were forced to do. |
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10-28-2006, 01:56 PM | #57 | |
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What would you think about having a tribunal for such a person where evidence is presented to a trier of fact, but any part of it that is classified and could lead to military or intelligence assets being killed or compromised is recieved by the trier of fact outside of the presense of the defendant and his counsel?
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10-28-2006, 04:07 PM | #58 | |
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I again would have to simply relate back to the "fairness" standard. Could a system be devised whereby the defendant is able to properly defend himself and the nation's secrets could remain guarded? I know it happens in the US criminal system from time to time, so presumably such a system has been developed. I don't practice criminal law, so I can't intelligently speak to how such a system plays out in practice. Thoughts? |
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