The problem is this:
PRisoners are under the authority of the US.
But I like the effort.
The need for this reminds of the old saying that when Rome was great, few laws were needed.

As hunter points out, your proposal will not solve the question of Gitmo. Gitmo is sovereign US territory. If a child is born there, they are American and if you steal the General's watch, you will be tried in American courts. There is an old saying that Bad situations lead to bad laws. It seems that bad situations also lead to bad judicial decisions. When Gitmo was opened, I was concerned that it was going to cause legal problems down the pike. While I really don't care what you do to terrorists, there were no public protections to make sure that those taken there were guilty. We were asked to trust the government and when push comes to shove, both the far left and the far right do not. The whole thing seemed like the Star Chamber. War is an immoral business. We are forced by necessity to do things that would horrify us during peace. Necessity also forces us to do things during war that we would not want written into law during peace. Lincoln's violation of habeas corpus was necessary for war, but would we want the law rewritten to allow it? During war we have to violate our higher beliefs, in the hope of a better day. Bush's mistake was in not communicating well enough to give people trust that the government would work to that hope.

What does "this Constitution extends" mean? The Constitution either grants specific powers or places limits on powers, and it's sometimes not clear which one is meant.

Let's be specific. The smallest change I can think of is:

The restrictions placed by this Constitution on the actions of the Government extend insofar as those actions directly affect a person subject to the actual sovereign authority of the United States of America.

Now it's not so clean.

Here's one that's even messier, but which also replaces the "actual sovereign authority" phrase with something that's clearly delineated.

The restrictions placed by this Constitution on the actions of the Government extend insofar as those actions directly affect a person who is either a citizen of the United States of America or is within the borders of its States and Territories.

In other words, Congress and the Executive can create or destroy policy on how we treat people outside of US territory, and no appeal to the Constitution may be made; only appeals to Constitutionally enacted law and treaty may be made.

I'm still not happy, but I've got a backlog of posts to write, so here ya go.

Hunter:

The problem is this: PRisoners are under the authority of the US.

But per the Supreme Court decision (both majority and dissent), they are not subject to the "sovereign authority" of the United States. Nk notwithstanding, in the law, there appears to be a very big distinction between being under the control of a country, and being part of the sovereign territory of that country.

For example, in Scalia's dissent, he makes clear that in the 1600s, Wales was part of the sovereign territory of Great Britain -- but Scotland was not; it was always a separate country ruled by a king (James VI) who happened to have also become the king of England (James I). But it was considered a separate, sovereign land held by the same person as the king of England.

And specifically, an English writ of habeas corpus extended to Wales but not to Scotland.

The Court did not seriously dispute this; they never claimed, not even in the majority opinion, that Naval Base Guantanamo Bay was "sovereign American territory;" they ruled instead that, while it remained sovereign territory of Cuba, it under the de facto control of the United States... and that this was enough to allow habeas corpus to apply.

They argued that habeas corpus rights -- hence, one presumes, virtually every other constitutional right as well -- extend into every country where America controls, even temporarily, some tiny section. And that is precisely what I hope this amendment would overturn, since it would restrict the extent of the Constitution to those areas that are part of our sovereign territory... not simply places we temporarily control.

Today, under this ruling, that means a prisoner held in a POW camp in Iraq can file a writ of habeas corpus and demand that he either be charged with a crime (for which we would need probable cause) or released immediately... that is, we cannot even hold ordinary prisoners of war in a POW camp during a war without having to try each and every one of them for a "crime," which must be a crime under U.S. federal law. That means every ordinary POW would have to be immediately released upon filing his writ.

But if this amendment were to pass, a POW in an American military prison in Iraq is clearly not subject to the actual sovereign authority of the U.S.; we simply compel his physical presence.

If, however, he were being held in the U.S. embassy in Iraq, then habeas corpus would extend to him -- and he could file his writ, which might be granted if he met whatever other criteria are required. Thus is because our embassy is considered sovereign U.S. territory.

SteveC:

Gitmo is sovereign US territory.

Then you disagree not only with the four dissenters in Boumediene, you even disagree with the five justices in the majority: Your position is rejected by all nine justices.

And they pointedly did not make this argument.

Wtanksleyjr:

What does "this Constitution extends" mean? The Constitution either grants specific powers or places limits on powers, and it's sometimes not clear which one is meant.

It grants or protects within certain geographical limits. It does not extend to non-U.S. citizens living in Canada, for example; nor does it extend to a non-U.S. citizen held in the French embassy in D.C.

"Extent," as used by Justice Scalia in his dissent (and I believe by the other justices on both sides) is evidently a term of art that means the physical area in which, and the particular people upon which, some act or rule -- in this case the Constitution -- applies. Until this ruling (and even the majority admits this), it was always believed that the extent of the Constitution was the sovereign territory of the United States of America and to U.S. citizens abroad in their interactions with American citizens or an American government (federal or state).

But if you are busted in France by the French and held in a French prison, you cannot file a writ of habeas corpus in a U.S. federal court and demand that they free you.

Contrariwise, even an illegal alien arrested for a crime here in the U.S. cannot simply be bunged into prison without a trial, without a lawyer, and without being allowed to examine the witnesses against him.

(He can be deported, because that is not legal punishment; it's simply removal from our territory. But he cannot be fined, imprisoned, or executed for a crime unless he is provided all the guarantees of the Constitution.)

So, as I -- a non-lawyer -- understand it:

Extent is the geographical area and collection of all people subject to something; scope is the range of authority some government body has within its extent. And no government body has any scope of authority at all outside its extent.

If I'm wrong, then I know that there is a word that does mean that (I think it's extent/extend), and I should just change that one word. I think you're right that those two rewrites are so "messy" (as you put it) and not "clean" that nobody but a lawyer would understand them.

Dafydd

The problem with this formulation:

This Constitution extends to all persons subject to the actual sovereign authority of the United States of America.

... is that it doesn't limit anything. The proposition "all A's are B's" does not imply that "only A's are B's."

Thus, in order to achieve what I think you have in mind, the wording would have to be something like:

This Constitution extends only to all persons subject to the actual sovereign authority of the United States of America.

But that is belied by the text of the Constitution itself. For example, Article III, Section 2 provides:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

All of the emphasized grants of jurisdiction either might or would involve people who are not subject to the sovereignty of the United States (i.e., foreign nationals).

But I certainly agree with the sentiment behind your suggestion. I'm wondering whether something keyed to conduct of foreign military engagements would work.

VG

Voiceguy in LA:

I don't think that's a problem, VG. As you quoted...

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

That seems a fairly clear statement that the judicial power naturally extends only so far as the Constitution or the laws of the United States extend... plus a few special cases enumerated here.

Limiting the extent of constitutional grants or protections of rights should not affect this clause, since it already specifies what additional special cases can bring suit... and terrorist detainees are not among any of those cases.

As to your first point (that "'all A's are B's' does not imply that 'only A's are B's'), we can throw an "only" in there; but I want to think about how to phrase that so as not to nullify part of the very III-2 you quoted.

The problem is that never in their wildest dreams did the Founders imagine what a narrow majority just ruled: That aliens living abroad had habeas corpus rights in American courts! It does such damage to the Constitution that it's hard to construct an amendment that perfectly undoes it without yielding unintentional and unwanted side-effects.

Dafydd

This Constitution extends to all persons subject to the actual sovereign authority of the United States of America.

How about: This Constitution extends to all persons within the boundaries of the United States of America and its embassies in other countries. Miliary bases are not subject to the United States legal system but to military law.

Great lizard,
I am still digesting the situation.
We have, in effect, had a judicial coup this week.
It is not the first coup. I am now certain it will not be the last.
Your reference to living under a very mild form of an occupied state comes to mind.
Especially the part about this being done for 'the best of reasons'.

Your Amendment is already in the Consitution, Dafydd:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

I will defer to a professional writer (that's you) but it seems to me "the land" is a better formulation than "actual sovereign authority".

I am going to print out Boumediene and read it properly before I say more.

Ok, I did not have to read very far. I believe I was right the first time. The court rejected the government's argument of de jure (formal and technical sovereignity, i.e. annexation) and pointed out that the United States has de facto sovereignity (full and complete civil and military control) which, IMHO, is the sensible and honest view.

This rejection of technicalities in favor of ralities goes back almost 500 years to Henry VIII's Statute of Uses which decreed that the beneficiaries of land were the real owners, and not the "trustees" who held only bare legal title and were not otherwise entitled to the, control, proceeds and avails of the land.

The sad part of this whole thing is what it will do to the conduct of our troops in any future conflict. No prisoners will be brought to the United States. Any important prisoners will be held by some other country, not us. Second, and worst, will be the lack of incintive to take prisoners. Dead men cause no jailhouse or courtroom problems.

Texas Jack,
The original Geneva Convention ascribed summary hearings and death for non-uniformed, non-credentialed enemy combatants.
By giving an inch, we gave away the show.
Our enemies, since at least the Korean conflict, have specifically gone out of their way to disregard the GC.
And Al Qaeda today knows well and good from reading us carefully how to manipulate the system. They are making sure that slimeball lefty extremists posing as lawyers and judges are the ones making decisions.
Heck, Islamists as a whole are close to getting the West to abandon the notion of free speech *voluntarily* in order to accommodate better to their demands.
Western secularists take to dhimmitude like ducks to water. And those of us who claim to care about freedom and liberty for all have, out of naive misplaced good faith, permitted people who are enemies of freedom, like the NYT and the ACLU, to appoint themselves as arbiters of our freedoms.
This bizarre distroted facsimile of a SCOTUS ruling is only a symptom of our corrosion.
Remember: true degenerates are people who cannot be bothered to defend themselves. We are far down a path that is difficult to get off of.

This country was doing just fine sending Tories, Copperheads, Nazi saboteurs, and war criminals to the scaffold before Alberto Gonzalez came along and thought he could do better. It's no surprise that after seven years of fumbling the Administration has no credibility with the courts on this issue.

I'm sorry to be such a pest, but what is a Conservative anyway? One who trusts the tried and proven ways our country has survived and flourished, or the inept imaginings of some lickspittle of President Bush? (I mean Alberto Gonzalez).

I'd like to support the effort but it takes not only 2/3 of each house of Congress ( improbable, but perhaps possible ) but also ratification by 3/4 of the States meaning at least 38. It would take only 13 to block it 1. Massachusetts 2. Rhode Island 3. Vermont 4, California 5. Washington 6. Hawaii 7. Maine 8. New Jersey 9. New York 10. Illinois 11. Oregon 12. Minnesota 13. Connecticut add Maine, Wisconsin, Pennsylvania, Delaware, Ohio, Iowa, New Hampshire and Michigan. No matter how noble the idea, it is best to remain in the realm of the possible.

Hunter:

Your reference to living under a very mild form of an occupied state comes to mind.

That post was by Dave Ross, not by me.

Nk:

Ok, I did not have to read very far. I believe I was right the first time. The court rejected the government's argument of de jure (formal and technical sovereignity, i.e. annexation) and pointed out that the United States has de facto sovereignity (full and complete civil and military control) which, IMHO, is the sensible and honest view.

Okay; so "de jure" doesn't matter; all that matters is whether something is "de facto" the case, and the law must follow.

Similarly, then, illegal immigrants who have lived here for years are de facto citizens, and should be allowed to vote.

Ken Hahn:

I'd like to support the effort but it takes not only 2/3 of each house of Congress ( improbable, but perhaps possible ) but also ratification by 3/4 of the States meaning at least 38. It would take only 13 to block it 1. Massachusetts 2. Rhode Island 3. Vermont 4, California 5. Washington 6. Hawaii 7. Maine 8. New Jersey 9. New York 10. Illinois 11. Oregon 12. Minnesota 13. Connecticut add Maine, Wisconsin, Pennsylvania, Delaware, Ohio, Iowa, New Hampshire and Michigan. No matter how noble the idea, it is best to remain in the realm of the possible.

All right. Let's just give up. That, at least, is always "in the realm of the possible."

I am increasingly disenchanted with the Right. As evil and anti-American as the Left is, they at least have the stomach for a fight.

Dafydd

There are times when I feel sorry for the Supreme Court and this is one of them. When they defer to Congress, the President and the States, such as in McCain-Feingold and Kelo, conservatives decry them. When they don't, such as in this case, conservatives also decry them.

I am not as stupid as I look (not by much anyway). I understand that the decision was as much political as it was legal. That waging war is not an Article III power. That it is a political, non-justiciable question. But it was the Administration who chose to depart from the tribunals J. Edgar Hoover fashioned to execute Nazi saboteurs. In favor of Alberto Gonzalez's unproven CSRTs. I'm repeating myself, but we have had no trouble leading unlawful combatants, foreign or domestic, to the scaffold before Alberto Gonzalez came along.

nk,
You are being less than sincere in this.
Why?
I have never seen you, so cannot but guess as to the accuracy of your looks vs. brains.
I think your repeated assertion that what was done in the past applied here was adequate in this case to be uninformed, at best.
The earlier days of Hoover and FDR putting Nazi saboteurs to death misses that: the Germans were spies of a known government, working on its behalf.
The American sympathizers were....Americans.
All were captured on American soil.
But I guess if the confusion you experience is widely held, I would still have to ask why the solution was to extend rights to non-citizens?
If Bush is spittle flecked and stoopid, why did you, however stupid you may look, wait until now to point out what is so obvious to you?
And I would ask the same of every lefty in the nation, from SCOTUS to stoner: where are the thundering editorials demanding your great solution? Where are the tapes from CSPAN of valiant patriotic Congressmembers railling about the lack of Hoover-esque tribunals to put these killers down?
Why was the only solution demanded by you brave, patriotic, pro-Americans in seven-or-so years of holding the detainees, to extend them and by them all enemy fighters in the future, full civil court rights for the first time in American history?

Great Lizard,
In no way do I think we should do nothing.
At the same time, I believe what ails us is not amenable to a cure of a few well written words.

First time commenter, long time reader. I think there are at least two possibilities here. First, change the first word in the 14th Amendment from 'All' to 'Only' and then add a coda (both in bold below):

"Only 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, and only such persons shall enjoy equal protection of the laws..."

Or you can play with the 11th Amendment regarding Judicial Limits (a particularly aptly named provision, methinks):

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Further, the Civil Judicial power of the United States shall not extend to persons not born or naturalized in the United States who are detained in military operations abroad."

You still don't get it do you, hunter?

Under pre-existing law, we had prisoners of war we could keep prisoners until the conflict was over and unlawful combatants we could court-martial and execute.

But then we had competent leadership who knew which was which. Which did not need to keep people it kidnapped from their homes prisoners for five years, or torture them for confessions to make its case.

Capisce?

This case is the result of the incompetence of the President Bush's Justice Department and nothing else.

They are not prisoners of war, because they do not belong to a recognized force of a foreign
power, wear recognizable weapons, bear weapons
openly. They are unlawful enemy combatants exactly for that reason. ex parte Eisentrager & Quirin, are most pertinent that's why they were
deliberated ignored. The Civil War military tribunal cases (ex parte Merryman & Milligan,)
give contrasting answers, on the point. The ACLU aided by the Democrats, have ligitated the word
'detainee' for the past 6 1/2 years, forced the spectacles of the Padilla & Moussaoui trials, where they have effectively gotten away with jay walking. Two things are likely to happen: if this decision is allowed to stand. They'll be more terrorist attacks, as the last 37 detainees involved in terrorism have proven; two, there will be no more prisoner surrenders. This is not an idle thought, the Amman hotel bomber in 2006,
was a onetime detainee at Fallujah, who was released because he was deemed not to be dangerous.

nk,
I would suggest that behind your snark, there is just emptiness.
Your side not once said we should use the old tribunals, tool.
Your side wanted exactly what it got on Thursday from day one of this war: the extension of civil law to war.
This case is nothing other than cynical people using fools like you.

Nk:

Under pre-existing law, we had prisoners of war we could keep prisoners until the conflict was over and unlawful combatants we could court-martial and execute.

But then we had competent leadership who knew which was which. Which did not need to keep people it kidnapped from their homes prisoners for five years, or torture them for confessions to make its case.

You should be aware that many decades have passed between World War II -- which is your example -- and today. More than six decades, in fact.

In between, we have had this little set of things called the Second, Third, and Fourth Geneva Conventions all adopted in 1949, plus three "Protocols": Two in 1977, the last in 2005 (literally symbolic). Those conventions and protocols, to which we have been signatories since their adoption, prohibit the sort of response you tout as the logical solution to our problem.

I'm not quite certain, but I'm fairly sure that Alberto Gonzales had nothing to do with adopting or ratifying the Geneva Conventions. For one piece of evidence, he was born six years after the fact.

Among the things that those treaties (which have the force of law in the United States) control is how we can treat prisoners -- any kind of prisoner, even unlawful combatants. Every person detained during a war, even unlawful combatants, must be afforded "humane treatment" (which means no summary executions) and cannot be "tortured." (No matter how passionately you may believe that waterboarding is "torture," the United States has never ratified any treaty proclaiming it to be... not even under Bill Clinton.)

Thus, we are limited to a very few techniques for interrogation and a very small list of options for treating terrorist detainees in general.

I know your hatred of Gonzales is of colossal, gargantuan stature, rivaling my hatred for Josef Stalin and Mao Tse Tung. And I know you love to blame him for everything wrong with the world. But honestly, the more specific you try to get, the harder you will find your quest.

Alberto Gonzales was not the best Attorney General we had, but he is far from the worst. He was a lot better than Bobby Kennedy, for example, and lightyears ahead of Janet Reno, who spent the entire second term of the administration shielding Bill Clinton from every scandal she could.

Dafydd

I don't hate poor AG AG. I just don't think that he was "a wartime consigliere".

nk,
Sorry to see I was right.

Like I said over at Beldar's, the question on how to conduct the GWOT looms too large for legal analysis and argument in this case and people on both sides reach their respective positions depending on the degree of deference they give to Congress and the President. The Supreme Court Justices as well as we.

nk,
Then you agree that the SCOTUS 5 simply made something up by their own creativity, and not as a ruling on law or Constitution.

Well, they do that all the time on anything and everything. In Roe v. Wade they did it in a way I vehemently disagree with because they disregarded society's right to value children. Here, they did it in a way you disagree with because you think they are tying our hands in the Global War on Terror.

The Supreme Court does make policy and does make new law out of whole cloth no matter their protestations. Going back to Dafydd's main topic, the new amendment to the Constitution we need is one which overules Marbury v. Madison.

There was a recent case, Danforth v. Minnessota, where seven justices, including Scalia, Thomas and Alito said that the Supreme Court only interprets existing law and does not make new law. In their dissent, Kennedy and Roberts were practically laughing out loud.

P.S. See Beldar's new post. I see no way to disagree with that.

nk,
So then you would agree that the SCOTUS 5 have simply imposed a political decision wrt pesky things like the law or Constitution or their oath to follow and uphold both.

Nk:

I don't hate poor AG AG. I just don't think that he was "a wartime consigliere".

On that we agree completely; he was out of his depth. I would much rather have seen John Bolton in that position, but he was almost certainly unconfirmable by the time Ashcroft left office.

Dafydd

hunter,

Casuistry is a valid philosophy. It is the abuse of casuistry which is bad. The Supreme Court is the third branch of government, it is composed of the finest legal minds to be found, men (and one woman at time) totally bound to America, her well-being and survival. Are they perfect? No. If they were, we would make them our kings.

Dafydd recently had a post about Turkey and the protectors of her secular Constitution from attacks by her popularly-elected government. It is her military. I like our system better.

I've quoted you and linked to you here.

Dafydd,
I have no intention of giving up. I agree that the Court's action ia appalling and a Constitutional amendment would be the best solution. But please, we don't have unlimited resources. A fight at this time for an Amendment that has no chance of ratification is a battle we don't need. I don't generally oppose a glorious defeat if it leads to a victory, after all I got started in the Goldwater campaign. Let's not squander our resources on this until we have a chance to pass it.

Ken Hahn:

A fight at this time for an Amendment that has no chance of ratification is a battle we don't need.... Let's not squander our resources on this until we have a chance to pass it.

I think you're glossing over two very important points:

1. Constitutional amendments are often not passed right out of the box; they typically take years. Unless they encumber themselves with a time limit -- must be ratified by this date or they expire -- they can kick around until they accumulate enough state support.
2. Second and most important, the introduction, debate, and voting on the amendment in Congress can itself help create a better environment for it to pass; that very process will have an effect on this election, the next, and the next.

I believe most Americans will be outraged by the idea that foreign terrorists "deserve" more rights than American servicemen have; that if we capture Osama bin Laden, then according to this decision, which Barack H. Obama applauds, bin Laden can file a writ of habeas corpus; and if the best evidence against him is highly classified and cannot be handed over to an al-Qaeda attorney, bin Laden can demand to be released -- and some Clinton-appointed federal judge will do it.

(Today in Great Britain, the "Special Immigration Appeals Commission" is forcing the Ministry of Justice to release on bail the highest ranking al-Qaeda cleric in Europe. Any guesses how long he will obey his bail requirements and remain in the UK?)

So why not make the Democrats defend that horrible misjudgment and the twisted perspective underlying it -- that a captured terrorist is no more dangerous to this country than an illegal skateboarder and should have the same access to the civilian courts? For heaven's sake, force them to openly defend trying all terrorists in civilian court, instead of fighting them militarily.

Make Obama and his fellow radical Democrats explain to the American people why this amendment is bad, when it merely restores what even the majority in Boumediene admits is the traditional understanding of the "rights" of unlawful enemy combatants, or lack thereof.

That is a major point: Introducing and debating this amendment will force the leftists out of their hiding places, dragging them into the light for the whole country to see. Let's see them defend giving Khalid Sheikh Mohammed and Ramzi Binalshibh more rights than Gen. Petraeus would have, were he accused of wrongdoing.

Let us, by all means, have the spectacle of Carl Levin, Chuck Schumer, Hillary Clinton, Joe Biden, Barbara Boxer, Nancy Pelosi, John Murtha, and of course, Barack H. Obama arguing on the side of more rights for terrorists... while Mitch McConnell, Jon Kyl, Pete King, Duncan Hunter, and naturally, John S. McCain fight for protecting and defending the American people.

I want to see that fight; and I believe that fight will tremendously help the Republicans in the upcoming election, as well as all subsequent ones. And that electoral help will make it far more likely that we will finally pass this amendment, or a better-worded one... both by replacing anti-defense Democrats with pro-security Republicans, and also by convincing the remaining Democrats that they had better get on the train or they'll be left at the station.

The time to introduce an amendment is now -- not some hypothetical time years in the future when, miraculously, we have a 67% majority of Republicans in both houses and 38 states have assured us they will ratify it.

Dafydd

Thanks for hissing in, . Now you can slither in with a comment, o wise. (sign out)