The examples you mentioned aren't "degradation of civil liberties." They're the court punting on deciding issues they don't have to. The Court didn't hear the AT&T case because there wasn't any plaintiff that could prove they had been harmed. The Court didn't hear the "kill list" case because what the President does against enemy combatants off U.S. soil is indeed a political question, since the Constitution invests the President with primacy in international affairs.
The Court has not shied away from hearing similar issues when there was a closer nexus to U.S. soil and there were individuals with standing. The Court overturned a lot of the government's practices in Guantanamo, for example, because it was: 1) U.S. controlled soil; and 2) the people suing were actually hurt by the practices, not just people who objected to the practices.
>The Court didn't hear the "kill list" case because what the President does against enemy combatants off U.S. soil is indeed a political question, since the Constitution invests the President with primacy in international affairs.
The Court DID hear this case and they ruled on it. It just happens SCOTUS ruled SCOTUS does not have the power to review the constitutionality of the law in question.
Even during the heights of the Cold War when US citizens were working for the KGB and Soviets, including offering hand drawings of top secrete nuclear designs, the US citizens were NOT killed extra-judiciously, they were arrested and tried criminally.
There is no doubt that the Constitution invests the President power over international affairs - but you appear to suggest the President can just kill who ever he pleases outside the US (Citizen or Foreign National) as long as they are deemed "enemy combatants", is that correct? Keep in mind this is not a published Kill List, and the criteria to get on the Kill List in unknown.
Instead of me maintaining my position that the President being able to add anyone to a Kill List is a degradation of civil liberties and you maintaining it is not, is there a prior point the President maintained a Kill List of US citizens or as I content is this unprecedented in US history?
> The Court DID hear this case and they ruled on it.
Right, but either way they punted.
> It just happens SCOTUS ruled SCOTUS does not have the power to review the constitutionality of the law in question.
Well political question doctrine also has a big prudential element.
> Even during the heights of the Cold War when US citizens were working for the KGB and Soviets, including offering hand drawings of top secrete nuclear designs, the US citizens were NOT killed extra-judiciously, they were arrested and tried criminally.
Those citizens were in a framework where it was possible to subject them to process. They could be arrested, extradited and tried.
> You appear to suggest the President can just kill who ever he pleases outside the US (Citizen or Foreign National) as long as they are deemed "enemy combatants", is that correct?
That's not the power the President is claiming. It's much narrower than that.
That's not the power the President is claiming. It's much narrower than that.
The President has not stated what limits there are to his power. He has stated limits to what he will authorize. However if we accept that he can authorize it without having laid out limits to his authority, what stops another president from authorizing more?
Bear in mind, one of the most common ways for a democracy to become a dictatorship is for there to be broad emergency powers granted to the president - and then for the president to declare what effectively becomes a permanent state of emergency. Lest this seem paranoid, remember that the American experiment is 237 years old. If we assume that we are in a random point in time in the history of the USA, there is an a priori over a 10% chance that the USA will no longer exist in 24 years. There is a similar chance that the USA will survive another 2370 years. When we look across how long different types of government have lasted in different countries, the prospect of our system of government ending inside of 24 years is much more likely than its lasting 2370 years.
Does that seem absurd? I remember what the country was like 24 years ago. If you described what the USA would be like today to me back then, I'd have called it a dystopian fantasy. Democracy is more fragile than we want to believe. I'd like to keep it longer. And yes, I'm very willing to accept more trouble preventing terrorism if that is the cost. (And I'd also like to stop having to take my shoes off to get on an airplane...)
>Those citizens were in a framework where it was possible to subject them to process. They could be arrested, extradited and tried.
Necessity is the mother of all invention. However, what framework in the cold war era made it any easier to arrest, extradite and try citizens then, than it would be now? It is my understanding it has been pretty easy to "extradite" both citizens and foreign nationals into Guantanamo, so what about the "framework" makes it more difficult extend due process of the law? Suspending the rule of law, especially as a matter of convenience justified by armed conflict is a slippery slope that has generally been frowned upon by subsequent generations, such as the US rounding up Japanese-Americans and confining them to "US internment camps" during World War II - Was it constitutional? Maybe, but was it a degradation of civil liberties? Without question.
>That's not the power the President is claiming. It's much narrower than that.
To the best of my knowledge the President has not claimed any power as it relates to killing US citizens. Like any politician who wants an issue to go away he has ignored it and made the official policy not to acknowledge the targeted killing programs.
As far as the power being narrower, it might be, but no one knows because the criteria to get on the Kill List is unknown. I rather doubt it is narrow with any strict standards, based on military/CIA intelligence if it is recommended to Obama to add a name, I bet he adds a name - of course these are the same intelligence communities who knew Iraq had WMD's and knew exactly where they were.
Based on your posts I can tell you are very intelligent and have at least a minimal knowledge of these issues coming before SCOTUS. I believe extrajudicial killings is a degradation of civil liberties, you do not,and no amount of SCOTUS rulings will change either of our minds, nor should we expect it to when the Court itself is split on most issues, generally 5-4 at that.
So to clarify, you are stating that U.S. citizens should lose all right to due process the minute they step off U.S. soil? Or do you believe that any citizen deemed an enemy combatant can be killed by the executive on U.S. soil as well?
I'm not saying either of these things. I'm pointing out that separation of powers requires the Supreme Court to respect situations where the Constitution has given other branches primacy. It has never been true that the Supreme Court is the appropriate forum for redress of every possible Constitutional violation. That is to say, it can be simultaneously true that the Executive does something unconstitutional and that it is appropriate for the Supreme Court not to review the action.
The conduct of war is an area in which the Constitution invests the President with primacy. But it's not a black/white issue--it's a spectrum. The more closely a matter touches U.S. soil, the more justification the Supreme Court has for intervening. At one end of the spectrum is the President's conduct with respect to foreigners on foreign soil. The Supreme Court has no business telling the President how to kill Taliban in Afghanistan. At the other end of the spectrum is the President's conduct with respect to Americans on American soil. The Supreme Court must insert itself in such situations, as it did in Hamdi v. Rumsfeld (2004), when it declared that the government must give due process to an American citizen captured in Afghanistan being held in Guantanamo.
Between there is where it gets iffy. Hamdi, for reference, hadn't been in the U.S. since he was a child. Yet he was held to have due process rights because he was on U.S. controlled soil (Guantanamo Bay).
The kill list cases have so far all been missing that crucial nexus to U.S. soil. Do you lose all your rights when you step off U.S. soil? No, and the Supreme Court has said so (Reid v. Covert). Do you lose all your rights when you leave the U.S., actively take up arms against it, and evade all attempts to bring you to justice? The Supreme Court is quite prudent not to take up that hairy situation, especially since civil libertarians may very well not like the answer.[1]
[1] It wouldn't be unreasonable or unjustifiable for the Supreme Court to say that U.S. Citizens do retain the right to due process while off U.S. soil, even if they take up arms against the U.S., but that an administrative process is sufficient "process due" in situations where the Citizen refuses to submit himself to judicial process.
The Court has not shied away from hearing similar issues when there was a closer nexus to U.S. soil and there were individuals with standing. The Court overturned a lot of the government's practices in Guantanamo, for example, because it was: 1) U.S. controlled soil; and 2) the people suing were actually hurt by the practices, not just people who objected to the practices.