Toss me a bone!

[Krurk]

Personally I hate writing about personal freedoms but that hasn't stopped one of my teacher's from making me.

Anyways, I am sort of sitting on the fence with this topic and it dawned on me that this forum is packed full of people who love to argue about this so maybe I can be... inspired?

The topic is "What do you think the government should do when terrorists violate the human rights of other people? (no brainer) Does the security of the many outweigh the human rights of a few terrorists? (This question is shit IMO, because more then just terrorists are affected by this)"

Personally I can't get motivated on this one either way because I think the question is a crock of shit, but she won't like it if my paper says "Your question sucks". My best guess for direction is over the effects of the Patriot Act and how they have either helped defeat terrorism or squashed personal freedom.

If I like your argument I'll give you a cookie!

Thanks :)

[Sueven]

You're right; that's an awful question.

Edit: that was completely unhelpful. sorry.

[Voronwë]

if you are prosecuting the action within the jurisdiction of the United States of America, it is a law enforcement matter.

if you are in the hills of Afghanistan, you can prosecute it militarily, or any other way you choose.

I don't think it is more complicated than that. If you want to say that the US is in war with these amorphous terror groups, and say that they must be prosecuted militarily even if they operate on US Soil, that is where you need at least one stipulation. I think you would have to initially prosecute them in a law enforcement matter until the link can be firmly established to a grand jury tieing this person as an operative of Al Queda (or analagous group), at which point, the criminal prosecution is terminated in the judicial sphere, and the military takes over to execute the person, ship them to Eqypt to torture them, or whatever else they may choose to do.

[Arborealus]

They certainly should have the same rights prior to commiting/conspiring to commit criminal acts (acts in violation of the social contract)...IMO the constitution of the united states is a good model not only for internal thought but external thought...Thus not recognizing the equal rights of "all humans" not convicted of criminal behavior seems inherently in violation of the constitutional principle...

Terrorism is at its base no different than any other violation of another's civil rights...Commission of rights violations is criminal and should be treated as such...In order to maintain the social contract we must restrict the rights of those who refuse to acknowledge their responsibility to that contract...

In short humans must eventually subscribe to a sort of universal social contract...breech of the contract can and should result in a degree of punishment commensurate with the breech up to and including loss of some (but not all) rights...

Congruent with this concept, removal of any of this set of human rights in absence of criminal conviction seems inherently criminal in and of itself...including removal of these rights by government(s) in the name of security...To eliminate something to guarantee it is inherently contradictory...

Obviously we are still working on what are universal human rights as a race and even as a country...

[Adex_Xeda]

History has shown government's tendency to erode personal freedoms over time.

Any release of liberty for the sake of security must be tightly restricted, and made to automatically expire after some time in the absense of legislative renewal.

[Brotha]

Before you can even begin to make a point on either side, the one thing you have to acknowledge is this: it's not possible to win the war on terror, to keep being from being blown apart by suicidal fanatics, while at the same time respecting every right. In a perfect world, perhaps like the one in Minority Report, this may be possible, but in the imperfect world that we live in it's simply not possible- the only option is compromise. (elaborate on why it's not possible, shouldn't be hard)

Compromise is a word often used to help reach a more reasonable solution that is in someway is satisfactory to all parties involved, but when the word compromise shows up in the same sentence as human rights, it obviously holds different ramifications than a compromise say on land, child visitation, price, etc.

How can a compromise on human rights (IE denying someone the rights they deserve, a founding principle of the United States) be "reasonable?" Then you can list out how affirmative action is reasonable, even though it obviously favors one race over another, based on it's results and intentions (I disagree but I'm sure your prof. would love it.)

LOL I don't think the AA example makes any sense, but I can't type anymore right now. If you're interested in this vein of thought I could type more later.

[Sueven]

it's not possible to win the war on terror, to keep being from being blown apart by suicidal fanatics, while at the same time respecting every right

Brotha: When you say "every right," do you mean every right that is guaranteed by the United States constitution, or do you mean every right that could be or has been theorized or assigned?

If you mean rights guaranteed to us by the constitution, then your statement is contradictory to the constitution itself, which holds that these rights must be respected, under all circumstances to which they apply. That's basically what a "right" is.

I will assume, then, that you intended the latter interpretation (or another interpretation that I have not defined. So basically, what you're saying is "we cannot win the war on terror if we respect every right that people claim to have." Well, yes. Of course. We would be basically unable to do anything under such a scenario.

How can a compromise on human rights ... be "reasonable?"

Well, assuming you mean "constitutional rights," it can't. That's why they're rights.

Assuming you are referring to some general, abstract definition of "rights," then it's very easy to see how a compromise could be reasonable: Since we don't recognize the rights as valid, we are not forced to abide by them.

We do, however, regard constitutional rights as valid. Some constitutional rights that are (arguably) being violated during the comission of the "war on terror" are:

Congress shall make no law ... abridging the freedom of speech

First amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fourth amendment.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed

Sixth amendment.

These rights are NOT open to compromise or negotiation.

I'm not sure if the affirmative action example actually does make sense or not, but I sure don't get it.

So basically, what I'm asking is this:

a). What definition of "rights" are you using?
b). Do you think we should be bound to respect constitutional rights in all cases?

[Krurk]

This is one where it gets really fuzzy.

Taken from Article XIV

nor deny to any person within its jurisdiction the equal protection of the laws.

Full text.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

http://www.law.cornell.edu/constitution ... ntxiv.html

Citing the above mentioned article, it would seem logical that the U.S. must extend legal protection to suspected terrorists who are on U.S. territory. Then based on Voronwe's comments, should a criminal court be able to establish terrorist links, then the case can be transferred to the military for trial.

This is taken from the UCMJ (Uniform Code of Military Justice) which covers military law in the U.S.

(10) In time of war, persons serving with or accompanying an armed force in the field.

http://usmilitary.about.com/library/mil ... ubject.htm

That would seem sufficient for classifying a terrorist based upon the broad scope of a "war on terror". Hence the term "enemy combatants" that is floated around at Guantanamo.

** Completely off-topic, and likely to spawn it's OWN (hint, hint) thread **

I cam across this while searching the UCMJ. Since it takes an act of congress to change the articles, this is why you won't see gays in the military anytime soon.

http://usmilitary.about.com/library/mil ... /bl125.htm

[Chmee]

Congress shall make no law ... abridging the freedom of speech

First amendment.

...

These rights are NOT open to compromise or negotiation.

Unless the subject is campaign finance reform?

[Krurk]

The basis of CFR legislation is that $$ does not equal speech. Using that definition, they feel that the First does not apply.

Ofcourse, most people know that the money is a form of expression, but that's why there are lots of lawyers making a lot of money to figure this out.

[Arborealus]

Hence the term "enemy combatants" that is floated around at Guantanamo.

An entirely contrived term with no precedence...It's basic intent is to keep these people from having POW status (which of course they are realistically)...And of course if they are within the Undited states they accrue some constitutional rights which is why Gitmo...

This by the way is why most signators of the Geneva convention will not hand prisoners over to the US right now...The capturing country is responsible under the Geneva Convention for verifying that prisoners are held in accordance with the Geneva Convention...Since in the estimation of most governments the detention policies are contrary to the convention they cannot/will not release prisoners to the US...

[Brotha]

First off, I typed that in about five minutes.

Second, I was responding to this question specifically:

The topic is "What do you think the government should do when terrorists violate the human rights of other people? (no brainer) Does the security of the many outweigh the human rights of a few terrorists? (This question is shit IMO, because more then just terrorists are affected by this)"

Brotha: When you say "every right," do you mean every right that is guaranteed by the United States constitution, or do you mean every right that could be or has been theorized or assigned?

If we're going to get into a serious discussion of this I'd like the question clarified. Are you talking about enemy combatants (IE from Afghanistan) or people domestically (IE "the innocent victims of the overreaching Patriot Act)"?

There are several restrictions on freedoms Sueven. Common sense restrictions- compromises of freedoms. Gun control laws, laws restricting free speech (campaign finance reform, can't yell "fire" in a crowded theatre), among others. With that and the fact that we've never faced a threat like terrorism before (I'm not saying the magnitude, I'm saying the specifics of it) in mind, it's perfectly reasonable that new ways of dealing with this new threat are being thought of.

As I was saying, there are more than the two choices which this argument always seems to boil down to. One being: we can either follow the law to the letter and let people be blown up- which would in a way be noble but would be an utter failure and dereliction of duty on the part of the government. The other one being: we take away free speech, violate everyone's rights and turn into the thing we've always been against.

Obviously neither one of those is an option. The answer is compromise. I don't think anyone supports turning the US into a police state, nor do they support allowing terrorists to blow us up. The fact is that not allowing the government the tools it needs to prosecute the war on terror is tantamount do doing the second. But allowing the government to take away all our freedoms is tantamount to doing the first. Again: compromise. To me, the Patriot Act is a compromise. It could use some refinement, but that's what it is.

Edit: And before I get the Ben Franklin quote thrown at me for the millionth time, I don't think the Patriot Act takes away any "essential liberties."

[Sueven]

Quick post:

All I'm saying is that, theoretically, the rights guaranteed by the constitution are inviolable. If you want to waive the right in a certain circumstance, you must come up with a legitimate argument as to why the specific right does not apply to the specific person or circumstance. Theoretically, campaign finance laws do not violate free speech. Whether or not this is accurate is a separate question, but if they were assumed to violate free speech, then they would not be law.

That's the only point I'm trying to make.

[Krurk]

Thanks for the responses. Have a good idea on where I will go with this, now it's just a matter of motivation.

[Brotha]

Quick post:

All I'm saying is that, theoretically, the rights guaranteed by the constitution are inviolable. If you want to waive the right in a certain circumstance, you must come up with a legitimate argument as to why the specific right does not apply to the specific person or circumstance. Theoretically, campaign finance laws do not violate free speech. Whether or not this is accurate is a separate question, but if they were assumed to violate free speech, then they would not be law.

That's the only point I'm trying to make.

I agree that no right should be waived lightly and if they are waived there should be strict wording so it can't be used to cover a broad range of things that it was never intended for (which is one thing I think the PA should improve). Furthermore, it should be proven that these restrictions are truly needed- it's debatable whether the Justice Department has done this. Again, if we lived in a perfect world there would be no need need to ever restrict them.

Let's just compare two things directly.

Like Vor said before about the Patriot Act, one of the things in there (I think it was you Vor =p) says that if you're investigated you're not allowed to blab about it. This makes perfect sense for a number of reasons. Is this a restriction of free speech? Without question. Are there other restrictions of free speech? Without question. Here's a long list of some of them:

http://www.csulb.edu/~jvancamp/freedom1.html#C

C. Exceptions to Freedom of Expression

Many exceptions to the First Amendment protections have been recognized by the courts, although not without controversy. Courts sometimes justify these exceptions as speech which causes substantial harm to the public, or speech which the Founding Fathers could not have intended to protect, or traditions that have long been part of the common law tradition from England that was the basis of our American legal system.

Rather than merely reciting the list of established exceptions, it is important to understand the rationale for making exceptions to free speech protection under the Constitution. The value of free speech sometimes clashes with other important values in our culture.

How should we weigh the relative importance of these competing social values? How do we balance free speech against racism, sexism, or anti-Semitism which promotes values we despise as a country? against speech which some consider a symptom of the decay of society's traditional values? against speech which directly results in physical injury to another person?

Exceptions established by the courts to the First Amendment protections include the following:

Defamation | Causing panic | Fighting words | Incitement to crime | Sedition | Obscenity
(1) Defamation: Defamation consists of a publication of a statement of alleged fact which is false and which harms the reputation of another person.(1) Our right to freedom of expression is restricted when our expressions (whether a spoken slander or written libel) cause harm to the reputation of another person. The courts recognize that words can hurt us, for example, by harming our ability to earn a living (economic harm).

This exception to freedom of expression can be difficult to apply in practice. Defamation requires an allegation of a fact which is in fact false. In contrast, the expression of an opinion is not considered defamation.

Imagine an artistic exhibit claiming that certain named persons, ordinary citizens were child molesters or had a secret Nazi past or earned extra income as prostitutes. If these are viewed strictly as factual claims which are false, they would seem to constitute defamation. But what if the artist said she was expressing a symbolic commentary or creating a metaphor about the secret lives of ordinary people, not making an allegation of fact? How should we draw the line in an artistic work between a factual statement and a symbolic or metaphorical opinion?

Some years ago, on an eastern college campus, flyers were distributed with the names of male students randomly drawn from the student directory, with the label that they were potential rapists. Assume, for the sake of argument, that this is guerrilla theater art. Were these flyers statements? Were they false statements? Were the reputations of the male students harmed? Should these expressions be protected by the First Amendment if the expressions were made by artists? Should we allow such statements, even if they are defamatory, if they are made by artists? How then should we decide who counts as an artist for this exception to the prohibition on defamation?

In 1990, Donald E. Wildmon, Executive Director of the American Family Association, published a pamphlet which include excerpts from the work of artist David Wojnarowicz in an exhibit, "Tongues of Flame." The artist sued Wildmon and the AFA for (among other things) defamation. Although the court agreed that "By presenting what are, standing alone, essentially pornographic images as plaintiff's works of art, without noting that the images are merely details from larger composite works, the pamphlet is libelous per se." However, as Wojnarowicz was considered a "public figure," he also had to show that Wildmon acted with reckless disregard for the truth. The court held that this higher standard had not been met. (For the text of this court decision, see Wojnarowicz v. American Family Association, 745 F.Supp. 130 [S.D.N.Y. 1990]).

Do you agree with Wojnarowicz that presentation of his work out of context was defamatory? What considerations support the artist's claims? What arguments can be raised against the artist's claims?

(2) Causing panic: The classic example of speech which is not protected by the First Amendment, because it causes panic, is falsely shouting "fire" in a crowded theater. (2) This is narrowly limited to situations in which a reasonable person would know that it was very likely that his or her speech would really cause harm to others. We can imagine works of art which might cause real panic among the audience, perhaps a contemporary version of Orson Welles' War of the Worlds, which caused considerable panic when it first aired on the radio, and in turn was based on H.G. Wells The War of the Worlds.

Imagine that a guerilla theater group staged a fake emergency which a reasonable person would expect would almost certainly cause real panic among the audience. This might be a theater production during which the director plans to yell "fire" and cause a stampede by the audience to the exit doors. Should this exercise of freedom of expression by artists be protected by the First Amendment? Or could we argue that the panic resulted simply because naive audience members were unsophisticated about how to approach art and that freedom of expression should prevail? Perhaps (one might argue) they do not know how to assume an "aesthetic attitude" or appropriately "distance" themselves from a work of art.

(3) Fighting words: In the famous case of Chaplinsky v. New Hampshire, the U.S. Supreme Court held that the First Amendment does not protect "fighting words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." (315 U.S. 568, 572 [1942]) This famous exception is much discussed in recent decades, but rarely the basis for a decision upholding an abridgement of free speech.

This exception warrants scrutiny. Note that the harm involved is physical harm caused by someone else who was provoked by the speaker whose speech is being suppressed. The fact that someone else flies into a rage and causes physical harm results in justifying suppression of speech by another person!

It is worth considering why this exception has declined in acceptance. Are we now more skeptical of claims that people cannot control their actions? Do we demand the exercise of more responsibility by persons regardless of what inflammatory words they might hear? Are we more suspicious of claims of causal necessity in such situations? Note the irony that we are also witnessing an increase in the so-called "abuse excuse" in which we seem more likely to excuse someone's behavior because of something someone else did to them. Is this inconsistent with the decline in the fighting words exception?

(4) Incitement to crime: It is a crime to incite someone else to commit a crime, and such speech is not protected by the First Amendment.

If a budding rap group proposes to perform a work which includes the exhortation to "kill whitie" or "kill the cops" or "rape the babe," could that be incitement to a crime? Such records have been sold by commercial organizations, of course, yet there are no reported arrests of those artists or record companies for incitement to a crime. Should such rap lyrics be considered incitement to crime or is the causal relationship to any actual murders or rapes too tenuous?

A novel criminal defense has arisen, claiming that such music somehow compelled the defendant to commit the crime. In Austin, Texas, Ronald Ray Howard, charged with the capital murder of a state trooper, claimed in his defense that ". . . he learned to hate police officers from years of listening to rap music with violent anti-police themes. . . . "(3) Is this an acceptable defense? Why or why not? (The jury convicted him, reaching a verdict in 35 minutes.)

The recent attention to violence on television is largely a debate over whether such televised violence is a cause of actual violence, such that persons who exhibit violent shows should be held responsible. If society wants to discourage violence on television, is it because such depicted violence is clearly a cause of actual violence? Are there other reasons why society might still feel justified in restricting this depiction?

It is easy to imagine highly unpalatable projects which arguably could be considered an incitement to crime. What if a fundamentalist religious extremist group publishes a guidebook in this country on how to commit terrorism in the United States, with detailed instructions on making bombs, maps showing the homes and offices of government officials, and so forth. Instructions alone would not seem to constitute incitement, so assume that the book will also include a statement from the religion's most revered leader urging that the guaranteed path to eternal bliss is following the instructions in the book. Given the presumed audience, might this be incitement to crime?

(5) Sedition: Although not without controversy, the U.S. Supreme Court has upheld statutes which prohibit the advocacy of unlawful conduct against the government or the violent overthrow of the government. As with prohibitions discussed earlier, the expressions in question are assessed according to the circumstances. Academic discussion of the theories of, say, Karl Marx presumably would not be prohibited under such a test, especially in this post-Soviet era. The theoretical consideration and even endorsement of these views could not remotely be considered to be reasonable expectations of the actual overthrow of the government. But it is possible that an artist might develop a project, perhaps guerrilla theater or an exhibit, that urged the destruction of the United States (the "Great Satan") by extremist religious groups. The likelihood of success by the latter group would seem as improbable as the likelihood of success by contemporary Marxists.

If the discussion of Marx should not be prohibited as sedition, should we be consistent and allow discussion by the religious extremist? Are there any grounds upon which we could distinguish these situations?

(6) Obscenity: In Miller v. California (413 U.S. 14 [1973]) the U.S. Supreme Court established a three-pronged test for obscenity prohibitions which would not violate the First Amendment:

(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Although much debated, this standard remains the law of the land, and elements of this language have been included in both the authorizing legislation for the National Endowment for the Arts (20 U.S.C. 951 et seq.) and the Communications Decency Act (4) prohibiting "obscenity" and "indecency" on the Internet. The Communications Decency Act was struck down as unconstitutional by the U.S. Supreme Court in June 1997. The NEA legislation was been struck down as unconstitutional by lower courts but was upheld by the U.S. Supreme Court in 1998. (NEA v. Finley, No. 97-371, 1998)
One controversy over this exception to free speech is whether obscenity causes real harm sufficient to justify suppression of free speech. Does viewing obscenity make it more likely that a man will later commit rape, or other acts of violence against women, obviously real harm to another person? Does reading about war make it more likely that someone will start a war? Even if there is some evidence of such causal relationships, however tenuous or strong, is it sufficient to justify this exception to free speech? Alternatively, could the prohibition on obscenity be a reflection of moral values and societal standards which should more properly be handled in the private sector through moral education, not government censorship?

Another problem area is determining what counts as "obscenity". In Miller, the court tried to fashion a standard which could be adapted to different communities, so that what counts as obscenity in rural Mississippi might not count as obscenity in Atlanta or New York City. Is this fair? Do the people in those areas themselves agree on community standards? What is the "community" for art that is displayed on-line on the Internet?

Another controversy in the Miller standard is the exception for "serious literary, artistic, political or scientific value." Who decides what counts as "serious"? If some people consider Penthouse or the National Enquirer to be serious literature, is it elitist to deny them this exception from censorship as "obscenity"? Given the controversies in contemporary art (found objects, performance art, and so forth), what counts as artistic value? Has the Court solved the problem of defining "obscenity" or only made it more complicated?

In reviewing these classic exceptions to free speech, it does seem that real harm can be caused by at least some of these instances of speech. Following J.S. Mill, we could limit our restrictions to real harm -- physical or economic harm, not psychic or hypothetical harm. If real harm is present, then we should next address the causal relationship necessary to hold someone responsible for the harm caused by the expression. This is not easy, of course, but we do have models for determining when a causal relationship is sufficiently close ("proximate") to hold someone responsible. We also have experience in determining whether to hold people responsible based on whether a reasonable person knew or should have known the consequences of their actions.

In addition to these established exceptions to freedom of expression, there are examples of speech which would not cause real harm, in Mill's sense, but which some believe justify suppression of speech: Offense | Establishment of Religion

(7) Offense: Although rejected by American courts, some theorists argue that speech which is merely offensive to others should be another exception to the First Amendment.(5) In a court challenge to an NEA-funded exhibit, David Wojnarowicz: Tongues of Flame, David Fordyce and Yvonne Knickerbocker claimed that the exhibit caused them to "[suffer] a spiritual injury and that the exhibition caused offense to their religious sensibilities." (Fordyce v. Frohnmayer, 763 F.Supp. 654, 656 [D.D.C. 1991]) The court rejected the claim, especially as "plaintiffs do not even allege that they have either seen the exhibition or studied the catalogue . . . [and thus] have failed to show that they have endured any special burdens that justify their standing to sue as citizens." Id. But the court left open the possibility that the plaintiffs might have a claim if "they had to confront the exhibition daily, . . . the exhibition was visible in the course of their normal routine, or . . . their usual driving or walking routes took them through or past the exhibition." Id.

The complexities of this issue are highlighted when other examples are considered. What if an exhibit celebrated the practice of some religions of female genitalia mutilation? Should such exhibits be accorded the full protection of the First Amendment despite the horror which most feel about such "religious" practices? Are there some expressions which are so extremely offensive to many in the population that they should be banned by the government, even though they cause no real harm to anyway? By what criteria should this be decided?

8. Establishment of Religion: Some speech is restricted because it constitutes the establishment of religion, which is itself prohibited by the First Amendment to the U.S. Constitution. ("Congress shall make no law respecting an establishment of religion.") Prayer led by a principal in a public school would violate the establishment clause. Thus, a school policy prohibiting the principal from leading such prayers would not violate the right of free speech. This is controversial to some, who believe that banning prayer in the public schools limits an equally important right, freedom of religion. This tension illustrates the not-uncommon challenge of balancing competing and perhaps even irreconcilable values in the Constitution.

In challenging the Wojnarowicz exhibit, the plaintiffs (above) argued that the exhibit was critical of their Christian beliefs and thus violated the establishment clause. The plaintiffs said that they

view the public display of the exhibition as an affront to their liberty to practice religion free from governmental entanglement and politically divisive governmental intrusion into the affairs of religion. (Id. at 655)
But the court said "that merely asserting spiritual injury under the establishment clause is insufficient to support standing to sue as a citizen." (Id. at 656)
Of interest here is the difference between spiritual injury, physical injury or harm, and economic harm. Why are the latter two sufficient to suppress speech, but not the former? What criteria seem to be involved in making such a distinction?

A future plaintiff might be able to show sufficient and direct suffering, but another consideration would rule out such challenges to NEA grants. To violate the Establishment clause, "Congress . . . [must have decided] how the . . . funds were to be spent, and the executive branch, in administering the statute, was merely carrying out Congress' scheme." (6) At NEA, in contrast, Congress does not "[participate] in the decision to grant or deny applications for federal funding, . . . . [nor does] NEA merely [administer] a congressional directive." (Id.) This means that if NEA denied a grant based on possible violation of the Establishment Clause, it might violate the free speech clause of the First Amendment.(7) Note that this reasoning seems to leave open the possibility of a grant by NEA to promote appreciation for Creationism

[Deward]

Krurk - I am currently in a Masters program and have to write a lot of papers. I would like to think that I am pretty good at it.

What level of work is this for? High school, undergrad, graduate work?

How long is the paper? If the paper is only 2-3 pages then I wouldn't even get into talking about the patriot act. You don't have the room. I would think it would take 15+ pages to properly discuss the necesary points of the Patriot Act by itself.

In other words don't write about a huge topic if it is a small paper. The teacher will just demerit you for not properly explaining something.

I do agree taht the question is a bit vague though. I would ask the teacher to further clarify it and ask if he/she is referring to teh rights of terrorists alone or the affect on all people.

[Krurk]

It's undergrad work, with a targeted length of 10-15 pages.

I spoke with the teacher about clarifying it and her response was simply "read the description".

Thanks for the response.

[Bubba Grizz]

Outline it in concise detail as well.

It may be a little narrow minded of me but I believe that our constitution should be for Americans. We shouldn't enforce our will on others but neither should they expect us treat them the same as Americans.

[Voronwë]

Outline it in concise detail as well.

It may be a little narrow minded of me but I believe that our constitution should be for Americans. We shouldn't enforce our will on others but neither should they expect us treat them the same as Americans.

well, it may be news to you, but over 100 years ago, it was amended to the Constitution that the rights enumerated apply to all persons within the jursidiction of the US.

addittionally, 200+ years ago, the Constitution was constructed in such a fashion that just because one guy has an opinion inconsistent with it, that it still applies.

Article XIV.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[Brotha]

Vor, here is a great piece. Basically, according to precedent and what the courts have now ruled, the US constitution does not fully apply to non-citizens outside the US.

Some excerpts:

The Constitution certainly applies globally. The real question is how it applies, and whether specific rights guaranteed by the Constitution are somehow territorially-limited.

Existing precedents suggest that they are. Even when the U.S. annexes territory, inhabitants of the territory do not necessarily enjoy the full protection of the Constitution. Thus, residents of Puerto Rico, though U.S. citizens, are not as a constitutional matter protected by the full Bill of Rights.

Meanwhile, when the United States occupies foreign territory, pursuant to military action, or leases territory, pursuant to a treaty, the constitutional constraints are even weaker -- some would say non-existent.

Last month, in Odah v. U.S. the U.S. Court of Appeals for the D.C. Circuit faced the question of whether citizens of Australia, Kuwait, and Britain captured in Afghanistan and detained at the U.S. base in Guantanamo, Cuba have a legal right to challenge their detention. The fact that the detainees are non-citizens was not crucial to the decision: non-citizens in the U.S. enjoy many of the same constitutional rights that citizens do.

Accordingly, the court in Odah acknowledged that the relief sought -- a writ of habeas corpus -- was indeed available to non-citizens. What was crucial was the fact that Guantanamo is technically Cuban, rather than U.S., soil. For this reason, the court could not "see why, or how, the writ may be made available to aliens abroad when basic constitutional protections are not." And it concluded that the detainees could not invoke the writ.

On the one hand, the basic powers granted by the Constitution are unaffected by geography. Many statutes are routinely applied to conduct abroad. And citizens are clearly protected by the Bill of Rights wherever they go in the world.

On the other hand, while the holdings of Insular Cases have been limited, their basic principle -- that territories ruled by the U.S. are constitutionally distinct from the U.S. itself -- has not changed. In 1990, the Supreme Court expressly reaffirmed this principle in U.S. v. Verdugo-Urquidez, on the way to ruling that the Fourth Amendment did not apply to a search by U.S. government agents of a non-citizen's property in Mexico.

What if, however, the U.S. pursues suspected terrorists abroad not as criminals. but rather as combatants? In that instance, must it still honor their constitutional rights?

A war paradigm rather than a criminal justice paradigm provides a very different set of legal rules. Within the U.S., courts have upheld, albeit with much controversy, treatment for "enemy combatants" – specifically, indefinite detention without access to an attorney that would be unconstitutional in a criminal prosecution. While this is an evolving area of the law, it is plain that U.S. agents are even less restrained when they act against enemy combatants outside U.S. territory.

The hardest questions of all are raised by the possible long-term occupation of Iraq. While the Constitution cannot shackle U.S. forces in a war, if the U.S. does occupy and govern Iraq, are there any legal restrictions on what the U.S. may do?

First, international law itself – through the Geneva Conventions and the earlier Hague Conventions, as well as customary law, prohibits a range of actions by "belligerent occupiers" against civilians. Under these Conventions, occupiers cannot institute ex post facto laws (for more on such laws, see Vikram Amar's recent column for this site), seize private property, or restrict religious practice.

These prohibitions are rough equivalents to the U.S. Constitution's Ex Post Facto Clauses, Takings Clause, and Free Exercise Clause. Importantly, these prohibitions apply whether the occupation is deemed "civil" or "military" -- a distinction that is currently being debated within the U.S. government. The Geneva Conventions also grant various rights to occupied civilians, including the right to an attorney if charged with a crime. (In the U.S. Constitution, this right is contained in the Sixth Amendment.)

Second, as a matter of domestic law, including the U.S. Constitution, it is clearly constitutional for the U.S. to establish an interim government and courts in Iraq, such as military commissions.

What about other actions of the U.S. in postwar Iraq, however? That is an open question. Older precedents suggest that the Constitution itself would not limit the actions of the U.S.. Yet it seems difficult to believe today that there are no constitutional restraints on U.S. actions abroad in a country it is occupying and essentially governing.