Just because it's lawful under the Constitution doesn't mean that it's not threatening rights: the US Constitution isn't perfectly complete, nor indeed even perfect in what it does cover.
The term 'rights' is also a vague one, and can be split fairly easily into those which should be considered universal and those which only apply locally -- for example, I have the right to walk across the road even where there's no designated crossing point, while in the US that would be jaywalking. That's not a universal right and certainly not a constitutionally protected one, but it's a right that's been removed from US citizens (and for good reason too, in some places). On the other hand, I would say that the right to life should be universal. The US is still largely happy with the death penalty and (per an earlier story on HN) the US Government seems to think that extra-judicial killings are fine too. They are apparently lawful under the constitution, and also threaten American citizen's rights.
By labeling that citizen a "terrorist" without due process of law. The entire purpose of "due process" is to force the accuser to produce the all the necessary evidence to prove the accusation and that he (the accuser) isn't simply trying to destroy someone he doesn't like.
First line of the article: "The Obama administration has won the latest battle in their fight to indefinitely detain US citizens and foreigners suspected of being affiliated with terrorists under the National Defense Authorization Act of 2012."
Original link:
"Congress granted the president the authority to arrest and hold individuals accused of terrorism without due process under the NDAA,"
Your link:
"...enemy combatants, including U.S. citizens, but ruled that detainees who are U.S. citizens must have the rights of due process,"
We've got 2 issues there, 'enemy combatants' requires a bit more proof than 'suspected of terrorism', although things can be fudged like in the Bradley Manning case. Then we have the whole due process.
The 5th amendment:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
The parts about the armed forces apply to military justice for troops, when wartime discipline is invoked. It's not saying that "when you're at war it all goes out the window for ordinary citizens".
Indefinitely detaining someone based on suspicion, without a requirement of due process or a way to appeal, is quite clearly unconstitutional although I hold little hope for the current Supreme Court to overturn it.
This is only constitutional because our government has said "it's legal".
Your right to free speech as an American citizen is only a right so far as the US government continues to respect that right. The Executive branch could come out tomorrow and start detaining anyone they cared to while stating that any criticism of the US Government is now a detainable offense, and it would be legal if the Judicial branch waved it's hands and said "We'll allow it."
Our rights may be "god given", but god cannot protect us from the tyranny of men.
In the Hamdi v. Rumsfeld case, the SCOTUS ruled that US citizens have the right to due process. So that ruling actually sets a precedent for this law being unconstitutional.
More specifically, many were deists, which was culturally equivalent to atheism at the time. Jefferson even published a version of the New Testament with all mention of God or the supernatural removed.
So it's okay to pick and choose which texts to follow from our Constitution? The Constitution doesn't give Snowden the power to interpret it. It does however give that duty to our federal courts. Should we just ignore that part in our Constitution?
The only reason courts interpret the Constitution is because somebody brings forth a constitutional challenge. Often that discussion results from somebody breaking a law.
The point is if Congress passes an unjust law, a legitimate recourse is to force the issue by breaking it intentionally and asking a judge to decide.
Where does the Constitution give sole authority for interpreting it to the Supreme Court? In fact, it does not even give that authority to the Supreme Court. Judicial review was not established directly in the COnstitution.
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 to secure these rights, Governments are instituted among Men,
deriving their just powers from the consent of the governed
, --
And here's the important part, pay attention:
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it
> Shouldn't the interpretation of our Constitution be left to the Supreme Court?
No.
> I mean, the Constitution explicitly grants the Court those powers.
The Constitution defines the judicial power of the United States to include deciding certain classes of legal controversies, including those arising under the Constitution, and provides that the Supreme Court is the organ which executes that role in both an explicitly defined set of cases, and in certain other cases as Congress directs. But that is pretty far from explicitly granting the Supreme Court the sole and exclusive power to interpret the Constitution.
Interpreting the Constitution is no less essential to the Supreme Court's role of deciding certain legal controversies than it is to, e.g., the President's role of seeing that the laws -- including the Constitution -- are faithfully executed, or the Congress's role in carrying out the powers and responsibilities it has defined in the Constitution, or the public's role in evaluating the performance of all three branches and electing members to the two political branches.
The Supreme Court (or the judiciary, or even "government officials" more generally) isn't a special priestly caste to whom the contemplation of certain mysteries is restricted. That would be contrary to the entire concept of government of, by, and for the people.
That's not what is says. Particularly, that period you put in isn't where the sentence ends, the full sentence is:
"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."
Further, the jurisdiction of the Supreme Court is defined in Art. III, Sec. 2: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."
Incorrect. The appellate jurisdiction of the Supreme Court is "confined within such limits as Congress sees fit to describe." The Francis Wright, 105 U.S. 381 (1881), at 386.
For legal purposes, sure, but if the people disagree with the court's decision there are ways to change things. We could amend the constitution, we could throw it out and write a new one, we could change the makeup of the court, etc. Legally the ultimate authority on the interpretation of the constitution rests with the Supreme Court, but the citizens of this nation are free to express what they want out of the constitution.
We are allowed to disagree with the court, we are allowed to voice our disapproval, and we are allowed to try to rally others to our cause. The Supreme Court is not some kind of heavenly authority, they are just as capable as making the wrong decision as any other branch of government.
Yes, you're free to express what you want out of the Constitution but you're not free to break laws as interpreted by our federal courts. Unless the Constitution is amended, shouldn't we be following the rule of law and let the Court interpret the Constitution?
The problem with that approach is that it allows unjust laws to persist indefinitely. Every so often someone needs to stand up and refuse to play by the rules to ensure that unjust laws are repealed.
Look at the situation Snowden faced. You have a system that widely violates basic privacy rights, based on a secret interpretation of the law, approved by a secret court that only hears the executive branch's arguments and which almost never refuses to grant a warrant (i.e. it is a rubber stamp), with oversight by people who are chosen by the executive branch and who work in secret. These programs, conducted in secret, are widely approved of by the government and widely disapproved of by the general public. Had Snowden accepted the rules and the law, these programs would remain secret and would have continued unopposed indefinitely.
The rule of law does not work when laws are kept secret from everyone. Healthy societies need everyone to follow the law, yes, but they also need for people who recognize failures of the system to stand up despite laws that forbid them from doing so.
FTA: All three pollsters asked their respondents how closely they had followed the NSA issue, and all three found just over a quarter of Americans following the issue “very closely,” while they found from about a third to half not paying close attention at all.
So, how could they report 90% or more of the public with a meaningful opinion about the NSA tracking program? The answer: They all used a “forced-choice” question format, which pressures respondents to make an on-the-spot decision, regardless of how committed they might be to that view. Thus, many people with no real views on the matter had to come up with one, and were thus highly influenced by the priming they had undergone during the interview itself.
You're free to do what you want as long as you're willing to accept the consequences. You're free to rob a bank if you think it's worth the potential jail time and harm to other people.
It's exactly the point though. You are free to break laws, or at least you are free to try. You are not nearly so free to break laws once you are in prison.
I think what you're saying is that you cannot expect to break laws without there being consequences. Of course we agree about that. The point of civil disobedience is that you believe so strongly you are willing to pay the price.
Perhaps you believe it is morally wrong to break laws as a means of getting the courts to interpret the Constitution?
Which is only convention, not by law, and in any case, just an arbitrary number.
FDR threatened to pack the court with lackeys if they didn't vote in favor of his programs.
Which raises the obvious question of, since that event, has the Supreme Court really even served as a check on executive power?
I suppose, at least, FDR would have had to answer to public opinion if he had actually carried out that threat. Unlike, say, if the secret FISA court were so threatened.
> Which is only convention, not by law, and in any case, just an arbitrary number
No, its actually set by law, not convention.
> FDR threatened to pack the court with lackeys if they didn't vote in favor of his programs.
FDR proposed legislation to Congress which would have expanded the number of Justices on the Supreme Court. [1] It was not a threat of unilateral action. The President can't appoint people to the Court without an open seat, created by Congress, to appoint them to.
> I suppose, at least, FDR would have had to answer to public opinion if he had actually carried out that threat. Unlike, say, if the secret FISA court were so threatened.
There are two different courts created under FISA (the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review), and the members of both are selected by the Chief Justice of the United States from among current members of the federal judiciary.
The Supreme Court is just another political body. If you have any doubt about this just look at the nomination hearings, as well as the huge number of 5-4 rulings. If the law were clear and it wasn't political, most of the rulings would be heavily slanted one way or another as it would be clear to the justices and there would be very little disagreement.
In short I agree: the Supreme Court is NOT The Voice of God.
