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StandardVC10 posted:Is there a specific case you're referring to? Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., in which scotus will replace disparate impact analysis in housing discrimination suits with "go gently caress yourself minorities", to use a term of art
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Dec 11, 2014 02:55
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Jagchosis posted:Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., in which scotus will replace disparate impact analysis in housing discrimination suits with "go gently caress yourself minorities", to use a term of art Or in more concrete terms, it will legalize housing discrimination as long as everyone sticks to using dog whistles instead of saying "black people."
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Dec 11, 2014 03:09
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ComradeCosmobot posted:Or in more concrete terms, it will legalize housing discrimination as long as everyone sticks to using dog whistles instead of saying "black people." So in line with the quid pro quo decision, a rose by any other name is a different flower.
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Dec 11, 2014 03:37
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Scalia continues to be awful by saying that he doesn't know what Article of the Constitution the CIA's torture program would contravene. I'm pretty sure even the Framers would find shoving hummus up a man's rear end "cruel and unusual", before even going into whether the Convention Against Torture applies through Article Six.
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Dec 13, 2014 00:21
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TinTower posted:Scalia continues to be awful by saying that he doesn't know what Article of the Constitution the CIA's torture program would contravene. The constitution only applies to Americans, duh.
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Dec 13, 2014 00:24
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TinTower posted:Scalia continues to be awful by saying that he doesn't know what Article of the Constitution the CIA's torture program would contravene. The Bill of Rights is not in an article of the Constitution, but it's own separate section entirely. Scalia wins on a technicality.
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Dec 13, 2014 00:25
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TinTower posted:Scalia continues to be awful by saying that he doesn't know what Article of the Constitution the CIA's torture program would contravene. well, since they were POWs, not criminal prisoners, he'd probably be right. I think the 8th amendment only applies to criminal prisoners, not war prisoners. If someone has a case to the contrary please correct me. It doesn't violate the Constitution, it violates Inernational law. Still illegal, just different source.
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Dec 13, 2014 00:26
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There's nothing in the Constitution that says that prisoners of war, or anyone else in the custody of the United States, aren't afforded constitutional rights. Clearly if the Framers didn't want them protected by the Constitution, they would've said so.  Despite that, despite the Bush Administration's legal chicanery to not afford them Geneva Convention rights, there is a customary international prohibition against torture, and one that derives itself from English and American constitutional law (specifically, the Bill of Rights 1688 and the Eighth Amendment), so… 
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Dec 13, 2014 00:34
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you see when those founders said no person may be deprived of life, liberty, or property without due process of law they forgot to include torture you can't take his pants but you can take his sanity and dignity checkmate
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Dec 13, 2014 00:40
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ActusRhesus posted:well, since they were POWs, not criminal prisoners, he'd probably be right. I think the 8th amendment only applies to criminal prisoners, not war prisoners. If someone has a case to the contrary please correct me. It doesn't violate the Constitution, it violates Inernational law. Still illegal, just different source. Were they even POWs? I thought the whole point of "enemy combatants" was that they technically weren't POWs or criminal prisoners. evilweasel posted:you see when those founders said no person may be deprived of life, liberty, or property without due process of law they forgot to include torture They said that while some owned slaves so ?
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Dec 13, 2014 00:41
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Trabisnikof posted:Were they even POWs? I thought the whole point of "enemy combatants" was that they technically weren't POWs or criminal prisoners. It's more, when most International laws of armed conflict were written the model was "state a vs. state b" (international war) or "belligerency a vs. state b" (civil war). Having a war with a non-state entity operating out of a different country doesn't fit neatly in the box, but is becoming more common, so the laws have adapted to reflect that. It's not a traditional POW because that imagines a situation where all parties are abiding by Geneva or other international law, but we also don't want to say "well, they aren't a country, they aren't party to Geneva, so gently caress 'em" so: Enemy combatant. Not entitled to full rights of a POW because hey...you can't demand protections given a lawful combatant...but there's also that pesky "humanity" thing. The Bill of Rights protects both citizen and non-citizens, but I can't recall the 8th Amendment ever being applied outside a criminal context. Closest would be in a military court-martial context. However, even there, in fact, death sentences at court-martial that would be unconstitutional in a civilian court have explicitly been found constitutional because...military. Prisoner vs. Detainee is a huge distinction insofar as what rights attach. However, Scalia's comment aside, even if it's not "unconstitutional" torturing detainees is still illegal.
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Dec 13, 2014 01:02
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In all seriousness any reasonable interpretation of the 5th Amendment bans torture: you can't "deprive someone of life, liberty, or property without due process of law" and any reasonable reading of that includes the liberty to not be fake-drowned, have ensure shoved up your rear end, etc. without due process of law. There being no due process of law that can countenance such actions, it's prohibited.
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Dec 13, 2014 01:07
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evilweasel posted:In all seriousness any reasonable interpretation of the 5th Amendment bans torture: you can't "deprive someone of life, liberty, or property without due process of law" and any reasonable reading of that includes the liberty to not be fake-drowned, have ensure shoved up your rear end, etc. without due process of law. There being no due process of law that can countenance such actions, it's prohibited. Except the Obama administration's own drone policy completely shoots that argument in the foot. "Process" = closed door legal review based on unpublished criteria by unknown people. (which I also think is bullshit...but it's being defended) problem with applying the 5th amendment to POWs and enemy combatant detainees, is the whole question of "what process is *due*" Kind of like the court-martial 8th amendment cases re: death penalty for rape, SCOTUS tends to give a lot of lattitude to the DoD and the Executive the minute you say "national security." The argument would be that the "process" was a closed door legal review. (like the drone one...which I also think is a complete violation of the 5th amendment, but they seem to be getting away with it) They've started to come around with Hamdi, Hamdan and Boumedine re Due Process and detainees, (and then got set back light years by the drone poo poo) but the clearer argument from the detainee rights standpoint is to stay away from the Constitutional argument all together and just say "it's a violation of international law." (Something the three detainee cases I just mentioned didn't have as clear a case for." International LOAC says torture is bad, mmmkay? ActusRhesus fucked around with this message at 01:17 on Dec 13, 2014 |
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Dec 13, 2014 01:14
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TinTower posted:Scalia continues to be awful by saying that he doesn't know what Article of the Constitution the CIA's torture program would contravene. You lift phrases a bit too freely. "Cruel and unusual punishment" is unconstitutional. See where it says punishment? The technicality Scalia and others are asserting is that if it isn't punishment then its OK. For example, cruel and unusual interrogation is allegedly OK as long as the interrogation doesn't cross the line and become punishment for a crime. There having been no criminal conviction, it isn't punishment. It's a very weird contortion, but it's part of the legal cover used by Bush, Cheney, and later Obama. Anyways, that leaves us with asserting due process as a protection against being fist raped until we tell them who killed Col. Mustard, where, and with what. But wait... Remember the disposition matrix and kill list controversies? Obama claimed that all the thinking and looking at stuff (that no one else can see) is sufficient due process for killing American citizens, especially in foreign lands. I think it's all as illegal as hell, but no one is going to convict a torturer by reading the constitution to the court. It's going to be a lot rougher than that and the torturers are bipartisan and politically powerful.
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Dec 13, 2014 01:25
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ActusRhesus posted:well, since they were POWs, not criminal prisoners, he'd probably be right. I think the 8th amendment only applies to criminal prisoners, not war prisoners. If someone has a case to the contrary please correct me. It doesn't violate the Constitution, it violates Inernational law. Still illegal, just different source. I realise this doesn't really contradict Scalia's position but on this particular point, I was under the impression that treatie America has become a full signatory to became part of Constitutional Law with a status just below the written document itself or ammendments to it? Or is 'the Constitution' used in a very strict sense in US legal speak? (coming from the UK where basically everything written by or about government, or just regularly done by the government, is the consitution).
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Dec 13, 2014 02:52
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MrNemo posted:I realise this doesn't really contradict Scalia's position but on this particular point, I was under the impression that treatie America has become a full signatory to became part of Constitutional Law with a status just below the written document itself or ammendments to it? Or is 'the Constitution' used in a very strict sense in US legal speak? (coming from the UK where basically everything written by or about government, or just regularly done by the government, is the consitution). No, over here treaties are not part of the constitution. We can amend the constitution but there is a very specific ratification process that the individual states have to weigh in on.
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Dec 13, 2014 02:59
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ActusRhesus posted:No, over here treaties are not part of the constitution. We can amend the constitution but there is a very specific ratification process that the individual states have to weigh in on. Treaties are not part of the Constitution, no. Reid v. Covert explicitly states that the Constitution supersedes treaties. But he's correct, generally speaking, that treaties nominally supersede legislation, though Missouri v. Holland ruled on state legislation, not national legislation, and Medellin v. Texas limited Missouri's scope.
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Dec 13, 2014 03:35
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ComradeCosmobot posted:Treaties are not part of the Constitution, no. Reid v. Covert explicitly states that the Constitution supersedes treaties. But he's correct, generally speaking, that treaties nominally supersede legislation, though Missouri v. Holland ruled on state legislation, not national legislation, and Medellin v. Texas limited Missouri's scope. Yes. But if the question was is the treaty part of the constitution, answers no. But what you laid out is why even if a state passed a law saying butt smoothies are legit it's not valid bc it's a violation of every loac treaty we're a party to. (And then there's the argument that some basic law of war things don't even require a nation to be a signatory because it's just basic humanity and saying nuh uh we won't sign doesn't absolve you of that) It's just not necessarily "unconstitutional" we can't sign a treaty that takes away things guaranteed under the constitution, either for the individual or the states, but we can sign ones that give more freedoms. Sorry if this is a little glib. Typing on phone. ActusRhesus fucked around with this message at 03:52 on Dec 13, 2014 |
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Dec 13, 2014 03:43
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patentmagus posted:I think it's all as illegal as hell, but no one is going to convict a torturer by reading the constitution to the court. It's going to be a lot rougher than that and the torturers are bipartisan and politically powerful.
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Dec 13, 2014 03:48
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twodot posted:Even if you conclude that torture is unconstitutional, what's the remedy? It seems to me the best you could ask for is the government to stop torturing you personally. You could bring a bivens claim... Bahahahahahaha. Sorry. I can't say that with a straight face.
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Dec 13, 2014 03:54
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The real technicality is that you can't call it cruel and unusual punishment because punishment implies you have been charged with committing a crime.
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Dec 13, 2014 04:27
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twodot posted:Even if you conclude that torture is unconstitutional, what's the remedy? It seems to me the best you could ask for is the government to stop torturing you personally. - All The Best, SCOTUS
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Dec 13, 2014 05:01
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ActusRhesus posted:You could bring a bivens claim... Kinda surprised one hasn't been filed already.
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Dec 13, 2014 05:02
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ActusRhesus posted:Except the Obama administration's own drone policy completely shoots that argument in the foot. "Process" = closed door legal review based on unpublished criteria by unknown people. (which I also think is bullshit...but it's being defended) I disagree. Killing people in 'war' might not easily fit into the language of the constitution, but it's well understood that the founders knew war was a thing and didn't try to ban it. However torture means the person has been captured and disabled and whatever exception applies to war no longer applies. POWs are a different matter because there is a due process involved. It's an abbreviated process - were these people captured on a battlefield - but again, an exception the founders would not have thought needed to be written out and does not cover torture. evilweasel fucked around with this message at 05:45 on Dec 13, 2014 |
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Dec 13, 2014 05:40
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evilweasel posted:I disagree. Killing people in 'war' might not easily fit into the language of the constitution, but it's well understood that the founders knew war was a thing and didn't try to ban it. However torture means the person has been captured and disabled and whatever exception applies to war no longer applies. The problem, of course, being that al anwaki was not killed on the battlefield. And, as others have pointed out, that "process" can be "we had our lawyers look at it first and they said it's cool. Your argument means that if we had an inquest or hearing first, it would be ok to shove hummus up someone's rear end. It's not illegal because of the fifth amendment. It's illegal because of LOAC. ActusRhesus fucked around with this message at 06:32 on Dec 13, 2014 |
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Dec 13, 2014 06:17
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ActusRhesus posted:The problem, of course, being that al anwaki was not killed on the battlefield. And, as others have pointed out, that "process" can be "we had our lawyers look at it first and they said it's cool.
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Dec 13, 2014 06:32
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FlamingLiberal posted:and 'Oh yeah....we can't tell you how our lawyers came up with that conclusion, Executive privilege, etc. etc." Also this. Also horrifying. The fifth amendment is not a great argument in this case based on how the current administration has argued it re: drones, and how the supreme court's rulings have been implemented re: detention in general. (E.g. Supreme Court says we have to review his detention to make sure it's still warranted because of due process. Hey, lawyers, is he still a terrorist? Yup. Ok then. Now we have to listen to him argue we're wrong. Is he still a terrorist? Yup. Ok. Case closed.) really, go to LOAC route. International law says torturing prisoners, detainees, whatever you want to call them, is wrong. Ps. Still typing on phone. Now sleep deprived.
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Dec 13, 2014 06:38
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The Bush OLC knew what they were doing when they decided to throw everyone in Guantanamo. Since they weren't technically POWs and not American citizens, and that base is not US soil or whatever, they are in a legal limbo. Plus after the torture it made it impossible for them to bring them to the US on charges, since their cases would likely be thrown out due to the mistreatment. So instead you half-rear end military tribunals which are also super secret and set up to insure that they never leave that island. Even when you try to bring the lesser people up for charges in the court system, Congress freaks out and makes that impossible. It's a horrible genius.
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Dec 13, 2014 06:46
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FlamingLiberal posted:The Bush OLC knew what they were doing when they decided to throw everyone in Guantanamo. Since they weren't technically POWs and not American citizens, and that base is not US soil or whatever, they are in a legal limbo. Plus after the torture it made it impossible for them to bring them to the US on charges, since their cases would likely be thrown out due to the mistreatment. So instead you half-rear end military tribunals which are also super secret and set up to insure that they never leave that island. Even when you try to bring the lesser people up for charges in the court system, Congress freaks out and makes that impossible. It's a horrible genius. The OMC is truly terrifying. Though Obama gets a fair share of blame in that farce because the "hi, we're going to publish thousands of pages of new procedural rules the day before trial, not release all disclosure, read your attorney's mail and bug the attorney interview rooms" shenanigans all happened on his watch the whole thing is a joke. Try them in a real federal court and deal with the consequences of prior gently caress ups. (I admit some bias here. I am personally acquainted with one OMC prosecutor who I know to be an unethical cancer on the face of justice). Also to back track a bit re due process and "war targets" apart from the fact al anwaki was outside a theater of combat when he was hit, there's also an argument he wasn't even a valid AUMF target. But this starts getting extremely complicated and  but the GiP current events thread covered it in a lot of detail 2 days ago. (GiP I apologize if this results in DnD drivebys)
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Dec 13, 2014 06:56
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I wish I knew how the attorneys representing Gitmo detainees even do that job. The stories they tell about all of the hoops they have to jump through while there are crazy.
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Dec 13, 2014 07:03
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FlamingLiberal posted:I wish I knew how the attorneys representing Gitmo detainees even do that job. The stories they tell about all of the hoops they have to jump through while there are crazy. Don't get me wrong. I think the ones being tried right now are guilty as hell. But we don't abandon our system of justice because we don't like someone. OMC and the way we have abandoned our belief in a fair trial = congratulations. The terrorists won. Best IRL troll job ever.
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Dec 13, 2014 07:07
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Oh...and not to get really off on a tangent, but one way the enemy combatant rules formed and evolved was in the context if "what do you do when a party to a civil war refuses to recognize the other side as a legitimate military force even though under LOAC it is?" Which is not uncommon as the state generally would rather categorize the enemy as mass civil unrest than risk legitimizing their claim of sovereignty by recognizing them as a "military." Enemy combatant/insurgent/belligerent rules helped strike a balance of "ok, don't worry. If you treat them fairly, you aren't conceding that they are a legitimate force and you aren't recognizing their sovereignty. Just play nice anyway, ok?" but again
ActusRhesus fucked around with this message at 07:24 on Dec 13, 2014 |
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Dec 13, 2014 07:20
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ActusRhesus posted:The OMC is truly terrifying. Though Obama gets a fair share of blame in that farce because the "hi, we're going to publish thousands of pages of new procedural rules the day before trial, not release all disclosure, read your attorney's mail and bug the attorney interview rooms" shenanigans all happened on his watch the whole thing is a joke. Try them in a real federal court and deal with the consequences of prior gently caress ups. (I admit some bias here. I am personally acquainted with one OMC prosecutor who I know to be an unethical cancer on the face of justice). Also to back track a bit re due process and "war targets" apart from the fact al anwaki was outside a theater of combat when he was hit, there's also an argument he wasn't even a valid AUMF target. But this starts getting extremely complicated and Is there actually some sort of legal definition of "theater of combat"?
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Dec 13, 2014 15:28
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ActusRhesus posted:It's more, when most International laws of armed conflict were written the model was "state a vs. state b" (international war) or "belligerency a vs. state b" (civil war). Having a war with a non-state entity operating out of a different country doesn't fit neatly in the box, but is becoming more common, so the laws have adapted to reflect that. It's not a traditional POW because that imagines a situation where all parties are abiding by Geneva or other international law, but we also don't want to say "well, they aren't a country, they aren't party to Geneva, so gently caress 'em" so: Enemy combatant. Not entitled to full rights of a POW because hey...you can't demand protections given a lawful combatant...but there's also that pesky "humanity" thing. When talking about the black site prisoners, they weren't even really treated as nebulous enemy combatants like Gitmo prisoners. Basically we treated them like spies whom of course you can torture or summarily execute or whatever. They were only upgraded from proscription to enemy combatant status when they were all sent to Guantanamo.
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Dec 13, 2014 15:31
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You aren't allowed to torture spies either.
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Dec 13, 2014 15:50
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evilweasel posted:you see when those founders said no person may be deprived of life, liberty, or property without due process of law they forgot to include torture How did they get the hummus up their butt if they couldn't take their pants? No, no, this doesn't add up at all. 
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Dec 13, 2014 16:02
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After 9/11 we should have rebuilt the World Trade Center to look exactly like it did on 9/10, we should have tried the 'enemy combatants' in Federal court, and we should have taken Bin Laden alive and dragged his rear end into court clean shaven and in an orange jumpsuit just like a common criminal. If we had done those things we could have pretended we are still a nation that believes in the rule of law and one that isn't afraid of terrorists.
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Dec 13, 2014 16:08
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Maarek posted:After 9/11 we should have rebuilt the World Trade Center to look exactly like it did on 9/10, we should have tried the 'enemy combatants' in Federal court, and we should have taken Bin Laden alive and dragged his rear end into court clean shaven and in an orange jumpsuit just like a common criminal. If we had done those things we could have pretended we are still a nation that believes in the rule of law and one that isn't afraid of terrorists. The WTC was pretty ugly, tbqh.
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Dec 13, 2014 16:19
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Maarek posted:After 9/11 we should have rebuilt the World Trade Center to look exactly like it did on 9/10, we should have tried the 'enemy combatants' in Federal court, and we should have taken Bin Laden alive and dragged his rear end into court clean shaven and in an orange jumpsuit just like a common criminal. If we had done those things we could have pretended we are still a nation that believes in the rule of law and one that isn't afraid of terrorists. You mean, rather than going all Keyser Soze and destroying Building 7 ourselves? 
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Dec 13, 2014 16:23
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Maarek posted:After 9/11 we should have rebuilt the World Trade Center to look exactly like it did on 9/10, we should have tried the 'enemy combatants' in Federal court, and we should have taken Bin Laden alive and dragged his rear end into court clean shaven and in an orange jumpsuit just like a common criminal. If we had done those things we could have pretended we are still a nation that believes in the rule of law and one that isn't afraid of terrorists.
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Dec 13, 2014 17:19
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