"They don't deserve rights" -- Final End

[ Show ]

Support VoyForums

[ Shrink ]

VoyForums Announcement: Programming and providing support for this service has been a labor of love since 1997. We are one of the few services online who values our users' privacy, and have never sold your information. We have even fought hard to defend your privacy in legal cases; however, we've done it with almost no financial support -- paying out of pocket to continue providing the service. Due to the issues imposed on us by advertisers, we also stopped hosting most ads on the forums many years ago. We hope you appreciate our efforts.

Show your support by donating any amount. (Note: We are still technically a for-profit company, so your contribution is not tax-deductible.) PayPal Acct: Feedback:

Donate to VoyForums (PayPal):

[ Login ] [ Main index ] [ Post a new message ] [ Search | Check update time | Archives: 1, 2, 3, 4, 5, 6, 7, 8, [9], 10 ]

[ Next Thread | Previous Thread | Next Message | Previous Message ]

Date Posted: 16:19:52 04/28/02 Sun
Author: Drummond
Subject: "They don't deserve rights"

First the op ed piece, then my response

From http://www.calbar.org/2cbj/02apr/page8-2.htm
They don�t deserve constitutional protections

By PETER J. RIGA

Peter J. Riga
Up until very recently, I have agreed with the ABA and other humanitarian and human rights groups that al Qaeda fighters held at Guantanamo Bay and elsewhere were entitled to the full protection of our Constitution and should be provided access to our courts and lawyers. I am not now quite so sure. In fact, I am opposed.

If you examine the Constitution carefully � and I have taught constitutional law � it was created to insure against abuses and oppression by the government. Thus, the burden of proof of beyond a reasonable doubt in criminal cases was directed against the government. In fact, during the Civil War, the U.S. Supreme Court decreed that Confederate prisoners could not be denied habeas corpus as long as civilian courts were in operation. In other words, the Constitution was made not just for civilian crimes but also for those who by force of arms fought against the U.S. War is usually applied force to bring about some political ends: to stop an action or invasion, to oust a particular form of oppressive government, etc.

But what of the present situation? Al Qaeda and other Islamic fundamentalists do not want to simply force the U.S. to do or to stop doing such and such; they want to destroy and kill everything American and �unbelievers� (i.e. non-Muslims). They want to destroy not only our democracy but our very being, our way of life, who we are. The Constitution was never made for such an enemy, for such a group of men dedicated to our death and demise as Americans and as non-believers in Islam. Our very freedom and existence is now threatened in a war, literally, to the death.

This is a particular kind of war, total war whose only outcome is the death (not just the defeat) of one of the other parties. There is no surrender, no negotiation, no give and take, since these bands of evil men want none of this. They want our death and destruction. The Constitution is not and has never been a suicide pact, nor an aid to those who want our death and will be satisfied with nothing less.

Therefore, constitutional protection should not be accorded to this band of evil men. They deserve humane treatment both because they remain humans in being and because we owe it to ourselves to respect them even if they do not respect us. But the full protection of the Constitution does not belong to them because of the very nature of this war and the nature of the Constitution itself.

I therefore have come to the conclusion � reluctantly � that President Bush�s idea of military tribunals judging these men with less than the full protection of constitutional freedoms is fully justified and in order. The Constitution was made for those at least who shared some of our values (such as mutual existence, co-existence, pluralism, varied freedom, human dignity, life itself), not for those who for religious reasons want our death and the death of our way of life by any means necessary to bring about these ends. Quick military tribunals with less than a required unanimity of decision, of less probable value than beyond a reasonable doubt, admission of hearsay and the witness of protected informants are fully justified because our very survival is at stake � not our defeat, but our very existence as individuals and as a people. You cannot use constitutional freedoms for a situation which was never envisioned by that document.

Our survival is more important than the Constitution because what good is a document of �We the People� if we the people are no longer. It would be like the Jews fighting for survival from the holocaust. The Nazis had to be either killed or imprisoned forever. Who doubts that if those 19 hijackers of 9/11 could have killed all Americans by their act of �martyrdom� that they would have done it? Therefore, there can be no constitutional protection accorded these men and they must be incarcerated in a secure facility for the rest of their lives. They must never again be allowed the freedom of release because given their religious ideology, they will conspire again to kill us as Americans and as infidels the moment they are released. It would be a form of suicide for us to ever again release them to anyone, anywhere for any reason.

I have come to this conclusion only after much thought and agony because it seems to contradict everything I believe in as an American. But the very first law of nature � beyond any written law including the Constitution � is the law of survival both as individuals and as a society. Only then can we speak of �the rule of law.� Law implies a sharing of common values. When the only thing someone, my enemy, wants is my death, the only law is that of nature and self- defense.

Military tribunals for members of al Qaeda with less than full constitutional protections is not only desirable, it is an imperative for our survival.

Peter J. Riga is a member of the State Bar of California who practices in Houston.

I sent off the following letter this morning:

Letters Editor
California Bar Journal
180 Howard Street
San Francisco, CA 94105-1639

Re: Peter J. Riga opinion column

Editor:

With all due respect to Peter J. Riga, the content and tone of his column itself belies his arguments. The protections he would have us sacrifice for the terror defendants are necessary precisely because of the issues he raises.

Nothing amazes me since Mr. Progressive himself, Alan Dershowitz, argued that we should consider torture so long as we mandate warrants. Even a procedural wonk like Deshowitz should recognize the potential for a slippery slope in this regard. Warrants would be required at first. Then the 20 plus years of accumulated Republican and Republican-want-to-be appointments of right wing judges to the courts would produce an exception for "exigent circumstances," where we would allow torture without warrants when there is danger to law enforcement or the possibility of the loss of evidence. Still later, the exception would be expanded to allow for a "bright line rule" so as not to confuse the poor torturer just doing his job. What would amount to "probable cause" for torture? Would the suspect's religion be a factor?

The questions for future horn book exercises. We are living in truly scary times.

A year ago, I'm certain Mr. Riga would have agreed with the motto that the laws must protect the worst of us in order to protect the best of us. Apparently, he has now invented a theory of law that allows for us to circumvent otherwise "inalienable" rights when the suspect perps are not merely bad, but really, really bad. Does he propose some standards, or elements, to determine who is really, really bad?

Yes, these people are nuts. Some of them are psychotic. But can we say that the suicide bomber is worse than the quiet shy guy who lives at the end of the cul-de-sac with a stack of bodies in his basement each from which he cut out the spleen and deep fried it for lunch? Defendants like this guy and defendants much less extreme are responsible for more deaths of Americans in one month than all the terrorists have been for the past hundred years. Which group is really more of a threat to the average American?

In any case, the measure of evil beside the point. I'm certain Mr. Riga would have flunked any of his students who argued that a criminal defendant "deserves" the rights. It's not a question of merit. We deserve a system that recognizes certain rights as inalienable to anyone born to the parents of homo sapiens species. In his argument, Mr. Riga appeals to the very passions from which the processes mandated by these rights attempt to protect the search for truth. We have these processes because hundreds of years of legal evolution have shown them to provide the balances that give us the best possibilities for arriving at a truth. In other words, the overall process is protected by these rights, not just the defendant. The horrific nature of these crimes make these rights and processes more pertinent, not less. Even Richard Nixon in trying to justify his prosecution of Alger Hiss admitted, "when you're shooting rats, you have to shoot straight."

It's not often that I can quote Nixon in agreement. What's sad is that by today's standards, he was a bleeding heart liberal.

Yours very truly,

Eric V. Kirk
Former President of the Civil
Liberties Monitoring Project

[ Next Thread | Previous Thread | Next Message | Previous Message ]

Replies:

Re: 'They don't deserve rights' -- sue da babe, 11:25:02 05/03/02 Fri