It's not easy, running a gulag

[Pindar]

Another angle on Gitmo:

"[E]very morning I pick up a paper and some authoritarian figure, some person somewhere, is using Guantanamo to hide their own misdeeds. [W]e have shaken the belief that the world had in America’s justice system by keeping a place like Guantanamo open ... We don't need it, and it's causing us far more damage than any good we get for it," - Colin Powell.

Do you think the Powell is suggesting we should simply kill everyone instead of detain anyone?

[FactionHeir]

HoreTore, the Convention on Human Rights from the OEA was not ratified by the US, so the US cannot be internationally compelled to oblige. You're also not making an arguement just posting some random articles without relating them to the subject at hand.

Considering the US hasn't ratified it, the US government certainly seems to love bashing other nations for their Human Rights record, even if those haven't signed it.
Talk about hypocrisy

[Lemur]

Do you think the Powell is suggesting we should simply kill everyone instead of detain anyone?

Do I need to answer a rhetorical question?

[HoreTore]

HoreTore, the Convention on Human Rights from the OEA was not ratified by the US, so the US cannot be internationally compelled to oblige. You're also not making an arguement just posting some random articles without relating them to the subject at hand.

I really did think this was obvious, but...

The UN universal declaration of human rights is just that - universal. It applies to every state and person. And this is the US view:

http://www.state.gov/g/drl/hr/

It was made by all the members of the UN, and applies to every member. Also, the US worked hard on it, so it is pretty obvious that it should be applied. On to the rights then:

http://www.un.org/Overview/rights.html

Article 5.

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

- The most obvious one. OK, you may not call what happens at Guantanamo torture, but can you honestly say that rubbing alleged menstruation blood in a persons face is not degrading treatment?

Article 7.

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

- A bit questionable, as the prisoners are not US citizens.

Article 9.

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10.

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

- Forget Habeus Corpus, it clearly states in article 10 that everyone should know the charge against them. How many in Guantanamo have been given a clear criminal charge? Also I'm quite skeptical at how fair and impartial the military tribunes are...

Article 11.

(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

- Can anyone say they have good access to lawyers at Guantanamo? And I'd say that they're treated like they're guilty, and as they haven't been tried in a court, that is a violation of the their rights.

So, happy now? Or should I spoonfeed you more?

[Alexanderofmacedon]

Reason #459 that Russia is better than the US:

It is easy to run a Gulag.

[Xiahou]

Reason #459 that Russia is better than the US:

It is easy to run a Gulag.

In Russia, the gulags run you.

[Alexanderofmacedon]

In Russia, the gulags run you.

Damn that would have made my post perfect.

[Pindar]

I really did think this was obvious, but...

The UN universal declaration of human rights is just that - universal. It applies to every state and person. And this is the US view:

It was made by all the members of the UN, and applies to every member. Also, the US worked hard on it, so it is pretty obvious that it should be applied.

Hello HoreTore,

Your post is confused on several points. The U.N. does not have extra-territorial authority. This means what is ratified within the U.N. does not have the force of law. For example, if the U.N. ratified a resolution dissolving Norway as a country, Norway does not thereby cease to exist as a nation. Any legal overlay one may want to apply to the U.N. exists as a treaty. Under U.S. law treaties require ratification. There are two points here: one, I don't believe the U.S. has ever ratified the U.N.'s specific declaration of human rights. Two, the ratifying authority always trumps what it ratifies. What this second point means is whatever has force to bind a thing, can also loose that thing. This is why a nation may ratify a treaty and then later reject, or modify the same. This is important for your case as the U.S. Congress passed the Military Commissons Act (MCA) in 2006 (I've previously referred to this in the thread). If you wish to make a human rights legal argument contra the U.S. you need to look into the confines of U.S. law, not the U.N.

Note: several of your citations from the Declaration on Human Rights speak to criminality. That is a civil designation and does not apply to combatants in Guantanamo regardless.

[HoreTore]

Hello HoreTore,

Your post is confused on several points. The U.N. does not have extra-territorial authority. This means what is ratified within the U.N. does not have the force of law. For example, if the U.N. ratified a resolution dissolving Norway as a country, Norway does not thereby cease to exist as a nation. Any legal overlay one may want to apply to the U.N. exists as a treaty. Under U.S. law treaties require ratification. There are two points here: one, I don't believe the U.S. has ever ratified the U.N.'s specific declaration of human rights. Two, the ratifying authority always trumps what it ratifies. What this second point means is whatever has force to bind a thing, can also loose that thing. This is why a nation may ratify a treaty and then later reject, or modify the same. This is important for your case as the U.S. Congress passed the Military Commissons Act (MCA) in 2006 (I've previously referred to this in the thread). If you wish to make a human rights legal argument contra the U.S. you need to look into the confines of U.S. law, not the U.N.

Note: several of your citations from the Declaration on Human Rights speak to criminality. That is a civil designation and does not apply to combatants in Guantanamo regardless.

No country in the world has ever ratified the UN declaration on human rights, as it doesn't need that. It is universal, and not only applies to every single state in the world, it also, and even more so, applies to EVERY SINGLE HUMAN BEING ON THE FACE OF THE PLANET. You may argue that US law says otherwise, however, those in gitmo will still have the protection of the human rights. It's quite simply untouchable. It cannot be altered, it cannot be broken. Not in any case whatsoever.

It also have an authority in the human rights court(in haag or geneve?), but you're right there, that one requires ratification, and I believe the US has withdrawn from that. However, I wouldn't see that a sign that you're "off the hook", I would see that as a sign to grap a point stick and storm the white house to prevent massive crimes against humanity.

Also, you seem to only argue on the legal issue, and seem quite happy that your country is stomping on one of the most fundamental things in our world to prevent another Hitler? It doesn't bother you the slightest that you are breaking the human rights, if you twist it so that it does not apply to you? I wonder how you sleep at night. BTW, I see no reason at all why you should be upset when Al Qaida is chopping off heads, chrashing planes and cutting off limbs. You're happy that you are doing it yourself, so you should be happy when others do it to you.

What would you say if the Taliban won the war and made a camp like gitmo?

As for the criminal stuff, there is no hint at all that those rights are limited to criminal charges, they are applied to every field and situation. For example, when it states that noone is to be detained without being informed of his charges, that applies to guantanamo bay as well as your average joe robbing a gas station.

[Soulforged]

No country in the world has ever ratified the UN declaration on human rights, as it doesn't need that.

However the Declaration (when in my post I talked about the Convention mind you) has no legal weight as to the international process of law, is just that a declaration of a purpose. So for the question: Are you making a legal arguement? The asnwer is no, and if you insist on yes (when there's no need for that), then you've to forget about the Declaration, every arguement founded upon that document is legally vacous.

[ajaxfetish]

No country in the world has ever ratified the UN declaration on human rights, as it doesn't need that. It is universal, and not only applies to every single state in the world, it also, and even more so, applies to EVERY SINGLE HUMAN BEING ON THE FACE OF THE PLANET. You may argue that US law says otherwise, however, those in gitmo will still have the protection of the human rights. It's quite simply untouchable. It cannot be altered, it cannot be broken. Not in any case whatsoever.

That is a very, very strong claim. Are you willing to stand behind it? Every single state, every single human being, untouchable, unalterable, period. Where does this declaration get such immense weight behind it that it can never be changed by any body ever, including the body that penned it? Is it a perfect document? What is its claim to universal authority through not only space, but also time? This sounds like the kind of faith placed in religious convictions, not those of secular humanism and law.

Also, you seem to only argue on the legal issue,

That's because he is a lawyer. He asked you specifically if you were making a legal argument to determine whether he should argue with you on legal grounds. You refused to answer the question but continued to argue in a legal fashion, so he responded in kind. If you change your argument from a legal one to something else, such as DC's moral argument, then you may be able to make some headway, but arguing Law with Pindar is like arguing astrophysics with Hawking. You're going to have a hard time coming out on top.

Ajax

[Pindar]

No country in the world has ever ratified the UN declaration on human rights, as it doesn't need that. It is universal, and not only applies to every single state in the world, it also, and even more so, applies to EVERY SINGLE HUMAN BEING ON THE FACE OF THE PLANET.

Soulforged has addressed this, but if you are attempting a legal argument to justify a human rights claim then the above is incoherent. If you're not attempting a legal argument for any human rights claim then the U.N. is irrelevant.

You may argue that US law says otherwise, however, those in gitmo will still have the protection of the human rights. It's quite simply untouchable. It cannot be altered, it cannot be broken. Not in any case whatsoever.

I think you are confused. I'll explain. If someone claims a human right, the claim alone is not enough. As mentioned before: if I claim a human right to disco, my claim carries no weight alone. If the U.N. declares I have a right to disco this also is insufficient for the reasons I explained in the previous post. So, if you wish to argue any human rights position and someone like me challenges or asked the wherefore of the claim, you need to justify that claim over and above simply saying it's universal or just is or some such.

Also, you seem to only argue on the legal issue, and seem quite happy that your country is stomping on one of the most fundamental things in our world to prevent another Hitler? It doesn't bother you the slightest that you are breaking the human rights, if you twist it so that it does not apply to you? I wonder how you sleep at night. BTW, I see no reason at all why you should be upset when Al Qaida is chopping off heads, chrashing planes and cutting off limbs. You're happy that you are doing it yourself, so you should be happy when others do it to you.

I think your passion is running away with you some.

What would you say if the Taliban won the war and made a camp like gitmo?

I would say the inmates would be in a far better situation than say what Daniel Pearl faced.

As for the criminal stuff, there is no hint at all that those rights are limited to criminal charges, they are applied to every field and situation. For example, when it states that noone is to be detained without being informed of his charges, that applies to guantanamo bay as well as your average joe robbing a gas station.

Actually the very notion of a charge implies criminality. The word charge implies a breach of some sort. A captured combatant isn't charged from the capture alone.

[Pindar]

That's because he is a lawyer. He asked you specifically if you were making a legal argument to determine whether he should argue with you on legal grounds. You refused to answer the question but continued to argue in a legal fashion, so he responded in kind.

Quite so.

[Don Corleone]

I think HoreTore is right, a human right should just be 'declared'. I would like to officially go on record as declaring my universal human right to replace our current office administrator with Liv Tyler.

[Louis VI the Fat]

I guess the self-evident truth that all men are endowed with certain unalienable rights is lost on teh Americans.


@Pindar and Soulforged. You two are responding with legal arguments to HoreTore. Or dare I say, legalistic. He initially did present his case as a legal argument, while failing to come up with a legal argument. But he changed to the sphere of legal philosophy in his last post. If you two tireless legal positivists are Hart, he is now Dworkin, if I remember them right.
HT's latest position can not be dismissed anymore by your repeating that the UDoHR carries no direct legal status. That would suffice in a court of law, but he is now arguing from a natural law position that no legal position that goes against the UDoHR carries, or rather, should carry, legal status.
I for one wouldn't mind hearing a legal philosophical rebuttal from either of you two (former) law students that says he's wrong in this.
It has no direct bearing on the current topic. Gitmo is tiresome and I don't feel like getting into it.

[HoreTore]

Well, I didn't get the lawyer-thingy, I'm not making a legal argument, I couldn't care less about that. You are not technically bound to follow it, but if you intend to make the world livable, you are bound to follow it. And isn't that what the bush administration is claiming to do? Civilized countries have chosen to put the human rights court above their own laws, and I hope the US will follow our example. The HR were created to avoid the atrocities of ww2 to happen again. For that to happen, it will first need recognition, which it has. Second, it will need authority, which it only has in a few places in the world.

And no, a charge doesn't have to mean criminal charge. Take a look at the cases in the human rights court, and you'll see that the definitions of that document are extremely broad catch-all phrases. Also, listen to what human rights organizations are saying about guantanamo. Not a single one of them claim that the prisoners aren't protected by the human rights, or that their rights are not broken.

The HR were created by basically the entire world. It's not like a few people sat down and decided something. And it's special in the case of the US, since they figured heavily in the making of them. If what you claim is correct, then the document is basically completely worthless. Why then do we have a human rights court, and trials where states are punished and they follow the verdict to the letter? So I'll ask you, do you think the document is a waste of paperwork, or is it a good foundation for a civilized society?

As for Ajaxfetish' comment, I fully stand by that claim, except that a new one can replace it, though that should happen in the same context that it was created.

[HoreTore]

I guess the self-evident truth that all men are endowed with certain unalienable rights is lost on teh Americans.

Quite so.... Along with world governments and such things...

[Soulforged]

If you two tireless legal positivists are Hart, he is now Dworkin, if I remember them right.

Both are philosophers of Law. But if he were indeed a Dworkin he still has no need of the international law.

HT's latest position can not be dismissed anymore by your repeating that the UDoHR carries no direct legal status. That would suffice in a court of law, but he is now arguing from a natural law position that no legal position that goes against the UDoHR carries, or rather, should carry, legal status.

But this is incorrect Louis. It's not because of the UDoHR that we can argue about contradictions, it's because we've certain moral principles, with or without such Declaration. However Hore clearly wants the Declaration to create a legal obligation. And even if all were right, I don't know why you don't consider it to be an attempt of legal arguement.

I for one wouldn't mind hearing a legal philosophical rebuttal from either of you two (former) law students that says he's wrong in this.

EDIT: Philosophically speaking it's incorrect to confuse moral with Law. While there's such a thing as objective Law there's only an objective morality in form of hipotesys and it's not appiable to every time and space on the same form. Both have different origins and don't necessarily affect each other. This doesn't make any moral critique implausible, but it certainly does when the question is: "Wich precepts have been violated?", for this we have to return to the definition of Law. The philosophy of Natural Law tries to apply a moral requirement to law, wich has nothing to do with its definition, and confuses things even more. If we have the Law defined then we can make a plausible arguement against or in favor of the subject at hand, and we can answer that question easily. Anyway if we really don't want to return to the principle of all this discussion and you're looking only for an answer to that question, first I'll say that HoreTore is indeed attempting a legal arguement, second the only coherent answer to Pindar question is a legal arguement, and third even if I failed on both previous accounts HoreTore fails to see the difference between moral and Law for the reasons exposed.

I guess the self-evident truth that all men are endowed with certain unalienable rights is lost on teh Americans.

I disagree there's no such self-evident truth, and the americans are one of the best protecting this human rights. It will be nice if they did ratified some convention on human rights to have an insurance above their Constitution and a resource above their national organs, but it seems that they don't really need that.

[Pindar]

I think HoreTore is right, a human right should just be 'declared'. I would like to officially go on record as declaring my universal human right to replace our current office administrator with Liv Tyler.

This will tie in to the other human right to have all governments run by young nubile women under 25.

[Pindar]

I guess the self-evident truth that all men are endowed with certain unalienable rights is lost on teh Americans.

No, it's just some of us understand the theoretical underpinnings of unalienable rights claims.

@Pindar and Soulforged. You two are responding with legal arguments to HoreTore. Or dare I say, legalistic. He initially did present his case as a legal argument, while failing to come up with a legal argument. But he changed to the sphere of legal philosophy in his last post. If you two tireless legal positivists are Hart, he is now Dworkin, if I remember them right.
HT's latest position can not be dismissed anymore by your repeating that the UDoHR carries no direct legal status. That would suffice in a court of law, but he is now arguing from a natural law position that no legal position that goes against the UDoHR carries, or rather, should carry, legal status.

Our good HoreTore has not made any appeal to natural law. He has simply made assertions. This will not do. I will not do the thinking for my interlocutor.

Note: Dworkin is far far away from any natural law posture.

I for one wouldn't mind hearing a legal philosophical rebuttal from either of you two (former) law students that says he's wrong in this.

I'm always happy to respond to arguments when they are presented. I can't give rebuttal to an argument that doesn't exist.

[Pindar]

Well, I didn't get the lawyer-thingy, I'm not making a legal argument, I couldn't care less about that. You are not technically bound to follow it, but if you intend to make the world livable, you are bound to follow it. And isn't that what the bush administration is claiming to do? Civilized countries have chosen to put the human rights court above their own laws, and I hope the US will follow our example. The HR were created to avoid the atrocities of ww2 to happen again. For that to happen, it will first need recognition, which it has. Second, it will need authority, which it only has in a few places in the world.

I assume HR is Human Rights. HR predates WWII.

And no, a charge doesn't have to mean criminal charge.

If charge has any referent to legal discourse then yes, it does. If charge has no tie to legal discourse then I assume there isn't meant to be any attending procedure to what you cited. If that is the case then the phraseology is vacuous.

The HR were created by basically the entire world. It's not like a few people sat down and decided something. And it's special in the case of the US, since they figured heavily in the making of them. If what you claim is correct, then the document is basically completely worthless. Why then do we have a human rights court, and trials where states are punished and they follow the verdict to the letter? So I'll ask you, do you think the document is a waste of paperwork, or is it a good foundation for a civilized society?

The Declaration of Human Rights (DHR) out of the U.N. is a piece of rhetoric. It cannot be taken for more given the legal standing of the U.N. and the moral absurdity that confronts the U.N.

As to the content of the DHR: by and large I think its good stuff. I'm not sure how you'll tie that to the larger argument about habeas corpus which is the focus.

[Boyar Son]

Dude, in brazil one of my cousins got a hold of a video showing a terrorist beheading someone then putting his head on his corpse.

I guess someone shouldve told that terrorist that guy had uneliable (sp?) rights...

[HoreTore]

Of all things I never expected to hear in life, hearing somebody say they don't think the UN human rights charter is important/matters is probably the top one. In europe, it is above the national law, in the US, people don't even think it's important...

Slowly, I'm beginning to see why Bush got elected.

[Sir Moody]

correct me if im wrong but the reason the EU "follows" the UN's Human rights is becasue the EU has its own bill of Human rights which all members must adhere too ie nothing to do with the UN but the EU which does have legal power over its member nations (and dont they just love using it)

[HoreTore]

correct me if im wrong but the reason the EU "follows" the UN's Human rights is becasue the EU has its own bill of Human rights which all members must adhere too ie nothing to do with the UN but the EU which does have legal power over its member nations (and dont they just love using it)

Not every european state is a member of the EU.

[English assassin]

Of all things I never expected to hear in life, hearing somebody say they don't think the UN human rights charter is important/matters is probably the top one. In europe, it is above the national law...

I don't think anyone said it was unimportant, they said it did not create individually enforceable legal rights.

Which is also true in Europe.

(BTW you may be thinking of the ECHR, although I am afraid you would still not be right.)

In UK law (it would seem from Pindar's post the US is the same) an international treaty, even if we are a signatory to it, has no effect in national courts until it is passed into UK law. (To be strictly accurate, where there is an ambiguity in legislation, it is a rule of construction that the courts assume that parliament will intend to legislate in a way compatible with our international obligations, but otherwise it has no effect). For many years the UK was a signatory to ECHR but it could not be directly pleaded in UK courts.

Membership of the EU complicates matters. ECHR is not an EU document, and its enforcement is outside the scope of the European Court of Justice. However compliance with ECHR rights is held to be a norm of EU law, and, therefore, again, can inform the interpretation and application of EU law. As most EU law appears to be created by people who imagine that half a dozen vague statements strung together by committee constitutes good legal drafting, applying ECHR to interprete the resulting ambiguous clap trap does indeed give considerable scope for ECHR to have legal effects. And EU law does trump national law.

It remains the case though that you cannot bring an action based directly on an ECHR right. And given the content of many of the rights this is probably inevitable.

Well, you can't in the UK. I can't speak for Norway.

[Boyar Son]

Of all things I never expected to hear in life, hearing somebody say they don't think the UN human rights charter is important/matters is probably the top one. In europe, it is above the national law, in the US, people don't even think it's important...

Slowly, I'm beginning to see why Bush got elected.

Lol u europeans soft on suspected terrorist!!

[ajaxfetish]

There's a difference between terrorists and suspected terrorists, just as there is a difference between criminals and suspected criminals. I think we in the US have too much of a tendency of late to assume guilt in anyone suspected of a crime. This I don't like, and I don't think it's healthy.

Morally, I'm on similar ground to Horetore. I have serious issues with the way things have been run at Gitmo, and I think DC has best expressed the kinds of concerns I have. However, HT's arguments in this thread have been fairly sloppy, making statements he can't support and misconstruing what his opponents say.

As for Ajaxfetish' comment, I fully stand by that claim, except that a new one can replace it, though that should happen in the same context that it was created.

That's a little better, since allowing a new one to replace it is basically the same as allowing it to be altered. The Declaration on Human Rights was written by fallible humans, and is certainly subject to error. While I might agree with you that the larger principle of universal rights is untouchable, I cannot agree about a specific document.

Ajax

[Pindar]

Of all things I never expected to hear in life, hearing somebody say they don't think the UN human rights charter is important/matters is probably the top one. In europe, it is above the national law, in the US, people don't even think it's important...

Slowly, I'm beginning to see why Bush got elected.

You are confused, again. Reread my post or note English assassin's post 116.

[HoreTore]

You are confused, again. Reread my post or note English assassin's post 116.

I'm not confused, I'm simply astonished.