Warning: Undefined array key "adf" in /home4/hpvcxhmy/public_html/wp-content/plugins/similarity/similarity.php on line 69
Warning: Undefined array key "sim_pages" in /home4/hpvcxhmy/public_html/wp-content/plugins/similarity/similarity.php on line 70
Like the second amendment, the eighth Amendment leaves no room for exceptions.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
There are those who would argue that not all the rights in the Constitution and Bill of Rights apply to non-citizens. Depending on your definition of “rights” there may be room to make such an argument, but no definition of rights could be used to argue that this right does not apply to every person on earth and that our government should honor this right in all its actions.
This brings up the question of torture as a tool employed by our government. The amendment does not allow any room for any form of torture regardless of the existence of any Geneva convention or rules of war because torture is, by definition, cruel. The only argument that could be made is that, although cruel, torture is not used as punishment because it is administered not in retribution for crimes, but in search of information. I think it is obvious how flimsy such an argument would be.
On a related note, our current administration claims to forbid the use of torture (no way to verify those claims) but proclaims their intention to use indefinite detention on those they deem as threats but who cannot be convicted of any crime. This absolutely violates the fifth amendment right that “No person shall . . . be deprived of life, liberty, or property, without due process of law.” While the relevant laws may vary between citizens and non-citizens, indefinite detention does not allow for that due process. If a person cannot be charged and convicted of a crime they should be released. If they are not a citizen they should be released to their country of citizenship.
8 replies on “Constitutional Amendment VIII”
Not all acts of violence against our nation can constitute the violation of a U.S. criminal statute. We cannot feasibly pass criminal statutes that apply to acts that occur beyond our borders. There has long been an understanding of the difference between acts of war and violation of criminal statutes. It is for this very reason that the Geneva Conventions were developed and adopted.
When acts of war are undertaken against our nation and the nation in which those acts occur is incapable of or unwilling to render the perpetrators of those acts harmless, we have a duty to render them harmless ourselves. Considering ourselves somewhat civilized, we don’t kill these people unless such immediate action is the only feasible course of action (i.e. our citizens are in immediate harm). Unable to charge them with criminal violations, we hold them in detention as long as they continue to pose a threat to our safety.
It is ridiculous to blur the lines between war and crime. Unfortunately, that is precisely what previous administrations have done. Then we end up with posts like this that suggest that acts of war and continued threats of acts of war should be excused simply because we cannot craft a law under which such acts could be charged as crime.
You propose a situation in which our soldiers become police detectives — where they are tasked with collecting evidence under conditions of warfare and developing prosecution cases instead of dealing with immediate military concerns. Can you imagine trying to cordon off a “crime scene” in the midst of battle? Let’s get real.
You misunderstand me. I am not talking about turning our military into a massive detective agency. We do not need to cordon off a crime scene in the midst of battle and we do not need to charge enemy combatants with violations of United States criminal code. Nor do these detainees need to have access to our civilian court system.
First and foremost we should not be engaged in so many conflicts around the world, nor should we be permanently stationed in dozens of foreign nations. Where we are engaged in military action it is perfectly reasonable to detain our enemies in order to further our military concerns – that does not mean indefinite detention unless we are engaged in indefinite war – which is ridiculous. Unfortunately that is exactly what we are doing right now, engaging in multiple indefinite wars.
I do not accept the presumption that engaging in full-scale military action is always a viable or recommended solution to dealing with those who would commit acts of war against us. Sometimes we have to do more of defending ourselves and acting in such a way that we stop giving so many reasons for others to fight against us as a result of our ill-conceived policies.
I’d like to know how you would apply the principles taught in the war chapters of the Book of Mormon to our current situation? How do you think Moroni or Lachoneus would have acted given our set of circumstances? Would they have simply put to death all these POWs that won’t vow never to fight America again? Their actions certainly suggest that they would have done exactly that. Which is better – detaining indefinitely, or simply killing all who won’t covenant with us to cease and desist? Unlike the Nephites, we have the resources to hold them indefinitely, so our options may be more open than theirs were. If they had the ability to sustain all their prisoners, would they have done so?
I think Reach is right in saying that our enemies in this case are waging an eternal war, even as the Lamanites did against the Nephites. I think of Ammoron’s argument that he was avenging his people of their wrongs as being analogous to our enemies claiming that it is America’s fault that they are waging war with us. They hate who we are, and that we’re more prosperous and comparatively more righteous (though we certainly need to repent).
I recognize that Americans are not guiltless. We are becoming a wicked people, as the Nephites before us. So our enemies are stirred up against us, as in Book of Mormon times, to help us become humble unto repentance. Moroni’s letter to Pahoran is instructive, especially Alma 60:23-24 about cleansing the inner vessel.
That’s a great question Jason, and I think it lines up very well with our current situation and our current discussion.
I would first point out that although the Lamanites were waging an eternal war against the Nephites the Nephites were not eternally at war – even while Moroni was leading them and Amalakiah was leading the Lamanites. Notice that Amalakiah attacks in Alma 49 and then does not come against them again for years starting in chapter 51. During all that time Moroni was focused on increasing the security of the Nephites rather than engaging the Lamanites in a foreign land.
I don’t mean to suggest that our history and our enemies would play out exactly the same if we were to pursue the same strategy, but I do mean to suggest that there is more than one approach to dealing with enemies who will not be placated.
How about the issue of detentions? I believe that, given unlimited resources Moroni still would not have detained his prisoners indefinitely. He tried that with the king men and learned that it was not sustainable. In fact, they had to make a standing law that all who would not covenant to defend their liberty shoudl be put to death. (see Alma 62:9-10)
Again, I am not saying that we will have to take that exact same stance, but merely showing that indefinite detention does not seem to be viable – even against an enemy that will never be placated.
If we are going to look to Moroni as an example it is not his specific choices that will best guide us, it is the principles that he followed. Even in times of peace he was busy preparing their defenses (because that was his job) and continually reminding the people of the liberty that they should be fighting for. If we look at what he did we see that even in the midst of war he did not desire bloodshed – he treated his prisoners humanely even when times were tough. When he was on the offensive he did not seek to kill his enemies, but to outmaneuver them and he always allowed them to leave without malice when they were willing.
We desperately need people to stand up and demand that we adhere to our principles of liberty and human dignity. We need to show that we will not tolerate abuses based on a state of war – that does not prevent us from taking prisoners and holding them as long as they are dangerous, but it does require that we do not treat them inhumanely.
We need to vigorously prosecute any military personnel who violate the rights of our detainees (admittedly we probably do better at that than most nations but we can do better) and we should not allow people to join the military based on a desire to kill – the only reason that anyone should be in the military is because they love liberty and desire to preserve it and represent our American values.
If I were to guess how Moroni would handle our modern prisoner of war situation I believe that he would try and execute any leaders of the terrorist enemies we are fighting (no indefinite detention) and those prisoners who were not leaders would be held so long as they desired to fight against us, but would be released as soon as their hatred was abated – whether by an and to the war or by their choice to live in peace with us.
I agree that we have problems with military interventions where we might have exercised much more prudence and much less hubris in dealing with situations. You and I are not the only Americans that are tired of being in an indefinite state of warfare. But what do you do when enemies of our nation consider themselves in an eternal war with us?
We need to ensure national security, but we need to make sure that what we do actually does that both in the short and long terms. Large scale military incursion should be considered the least preferred and most extreme option in dealing with belligerents that threaten and harm us. And then if we are going to go to war against another state, Congress needs to declare war as stated in the Constitution.
Matters become far less clear when we deal with stateless and/or multi-state enemies whose host states cannot or will not deal with them. What do you do with international radicalized organizations that undertake military-type actions against us and are bent on harming us?
You seem to imply that such organizations have some justification for their actions because of “our ill-conceived policies.” However, it is not what we have done in foreign policy that bothers these people. It is who we are. These radicals are at war with modern pluralistic society. These societies’ policies that the radicals find offense are employed merely as an excuse for their real motives. They would seek to inflict harm on such societies even if those societies were staunchly isolationist in their foreign policies. It is not the strengths of modern societies that bother the radicals or that the radicals seek to exploit. The radicals deplore and seek to exploit the weakness and decadence of these societies.
At any rate, treating members of these militarist radical organizations as mere criminals and asking for their release from detention simply because we cannot charge them under a criminal statute would not make anyone safer, despite the President’s protestations to the contrary.
I urge you to read Kevin’s y-intercept post on this issue at http://blog.yintercept.com/2009/05/war-process-and-peace-process.html . Kevin writes, “A prisoner of war is not [necessarily] guilty of anything. They are people detained for strategic and public safety issues. Their being a prisoner is not about them.” In war, most POWs are set free as soon as peace is negotiated. A few that have committed heinous acts are tried for war crimes as defined by the peace negotiations.
Again, what do you do when you have shadowy international organizations that consider themselves in a never ending war with your nation? You say that indefinite war is ridiculous. Americans are certainly tired of it. But what do you do if your enemies are not interested in sanity and are committed to indefinite war with you? You can unilaterally stop fighting, but this will not bring the peace you seem to suggest it will bring. Peace requires all parties in the conflict to actively engage in good will agreements. How do you propose doing this with a constantly shifting radical movement?
To be sure, all of these radical organizations have state sponsors. They could not survive without such support. And we largely know who the terror supporting states are; although, you’d never get any serious resolution regarding such passed through the UN. Exactly what do you think we ought to do about this? How do we achieve the moral purity you propose and still maintain security?
Let me start off by stating unequivocally that none of our policies is sufficient excuse to justify the actions of terrorists. I did not mean to imply that it was, but we are not doing ourselves any favors by violating our own principles and helping to cast a veneer of truth over their accusations.
Thanks for that link – it was well written. I can see now that we are closer in position than I had supposed and that I have not made my position very clear – let me see if I can rectify that.
I completely agree with our need for ensuring our security and I think that Kevin has done a good job of arguing that release of prisoners of war is a part of the peace process, rather than an act to pursue in the midst of the conflict. My opposition to the principle of indefinite detention is that the new president seems to be contending that we should retain the policy of indefinite detention as an option for those who are taken but who do not even appear to pose any real threat. I think that we need to take the opportunity to review and release those who get swept up in this unconventional war who are not committed to our destruction.
One of the best things that we could do in the PR aspect of this shadowy conflict would be to quit treating every detainee as an uncharged criminal. We do have reason to capture and detain large number of people in such a war, but if we were to treat them humanely, in accordance with the stated principles of our republic, that would help our image problem. If we stop the torture and allow free access to our detention facilities by organizations such as the red cross, showing that we are acting appropriately even in the midst of the conflict we would at least have the respect of many other nations rather than alienating even our friends – even though I recognize that such actions would do little if anything to dissuade the real belligerents.
The answer is that moral purity does not prevent us from detaining people in the midst of the conflict, but it does demand that we treat them humanely and work towards peace. It also requires that we take into consideration that sometimes a unilateral withdrawal from the field is a viable option against an enemy on the run. While our current enemy can be in an offensive mindset even on the run we should recognize that they are not as imminently dangerous as we have often been told.
Thanks for the clarification, David. Jason makes some good points. I would caution that there are some differences we should consider. 1) Both Capt. Moroni and Lachneous lived under the Law of Moses, although, they accepted Christ. Thus, a somewhat different moral code applied to them than to us. 2) Problems were not nipped in the bud and had spread to the point that the very survival of their civilization was immediately at stake, so that it was felt that execution was warranted. I don’t know that we’re anywhere near that point today. 3) They lived in a culture where a personal covenant was held to be inviolable, even among their enemies. A similar covenant today would pretty much mean nothing.
David sort of eludes to something that also should be considered. The way we treat captured enemies says more to us about who we are than it says to our allies or our enemies about who we are. It would be wise to consider the multiple implications of this fact.
Reach,
I believe that your third point is the greatest difference between our time and the time of captain Moroni. We would not be safe to simply release any prisoner who promised not to fight against us – we’d have to have more proof than that.