Natural rights v government granted rights

[UtahDan]

Originally Posted by hoyacoug

I have never said that every government is formed to secure the rights of not just the governed, but of all. That would be nonsensical, and, frankly, I have no idea how you got that from my post. Every goverment is SUPPOSED to be formed to secure the rights of its people (no, not of everyone). Clearly they do not all do that (or the Declaration of Independence would have been nonsensical too).

I'm glad you have retreated from that position. It was inhibiting a discussion of the more interesting issues here. Just so we are on the same page however, after I said that these natural rights only applied between a government and the governed you said:

Originally Posted by hoyacoug

I think you misread the Declaration of Independence. It is saying that ALL men are granted certain inalienable rights (the debate in the thread you did not read deals with what rights are inalienable rights).

Government is formed to SECURE those rights. Securing those rights is not the same as saying people are not entitled to the rights unless they are part of the governed. It means they ARE entitled to those rights, and a good government will ensure they receive the rights to which they are entitled.

Paragraph one says that ALL (you even used all caps) men have these rights. Paragraph two states that governments exist to secure "those rights", referring back to the rights of "ALL." You then clarified further that just because you are not among the governed doesn't mean you aren't "entitled" to them (refering to "those rights" which "ALL" men have). I hope you now have an idea of why I think you were saying that governments are formed to secure the rights of all. It is, of course, because that is what you said. Apparently it is not what you meant and I have already told you I am glad this is the case.

Continuing now with your last post:

Originally Posted by hoyacoug

We should expect that all good governments will secure the rights of anyone who comes within their grasp. That is the definition of a natural right. We recognize that people have rights whether or not their government grants them rights. It doesn't mean we have a responsibility to liberate everyone, but it does mean if one of their governed comes within our grasp, we should extend to them the very same rights we extend to our own governed because we recognize it is not our government charter that is the fountain of their rights but rather their mere existence.

So, for those Iraqis we capture (or any other nationality), yes, we have a responsibility to ensure that their basic rights are not violated.

Now you are getting closing to articulating what I did, and this is the area I think we have common ground on. You have refined your argument now to just include "those who come within our grasp" as opposed to all others who are not within that grasp. The devil, as always, is in the details. It is hard to think of a more ambiguous or open ended standard that "within our grasp" except for maybe "reasonableness." I think I can assume, because this is the context of the discussion, that you are saying that detainees are within our grasp. What I have asked you before, and you have not yet extended your argument to answer, is what justifies the killing of a non-citizen on a foreign battlefield if that same person, once captured, is owed due process to protect his natural rights? Recall that I have already said, and stated my reasons, why I clearly think that US citizens and persons captured on US soil are different. I have already said I think they get due process. I am talking now about a foreign soldier on a foreign battle field.

So (1) do we ever have the right to kill that person (I have to assume you will say yes) and (2) if we don't kill him why is depriving him of due process more offensive to a notion of natural rights than killing him is? There may be other good reasons, but remember we're just talking about natural rights.

Originally Posted by hoyacoug

I am not derailing here, you are simply reading more into this than you should. The same question could be asked of you: when would the killing of another in a civil war be justified? What about in a revolutionary war? The answer is the same: when the war is in pursuit of securing the rights of its people. Before you get too excited about that statement, I don't know that there has ever been a war where two sides were actually fighting to secure the rights of their people (kind of like the theory that no two democracies have ever gone to war).

1. See above.

2. You can't turn that question around on me because I have not made the argument that a government has to protect the rights of "ALL." Just the opposite. I have said that the government owes the protection of those rights to the governed primarily, so from my theoretical framework, when you have a situation like the US Civil war where the south secedes, it has opted out of the social contract and its people are no longer among the governed. Their new government is now the defender of their rights. In the much more common form of civil war in modern times what you really have is either no government or a faction controlling the government. This scenario is not cleanly dealt with by the idea of of a social contract because there really is none. Same is true during a revolution. This is the limitation of that concept.

3. I'm not going to get too excited over your concept of "securing the rights of the people" because it is almost as nebulous as "within our grasp." Unless we talk about what rights are included there then you can justify almost anything under that notion. Some people think we have a right to inexpensive oil for example and tried very hard to get price caps imposed this year. A very small leap to say we are entitled to kill to ensure our supply, if you define that as a right. Just one example.

Originally Posted by hoyacoug

It is hardly an impossible position. In fact, I think it is a relatively accepted position in terms of what the Declaration of Independence meant and was trying to accomplish. And yes, I did notice you agree with the underlying premise that due process should be afforded to those captured in this war. I agree on that point (obviously).

Now I'm really confused because I'm pretty sure you told me above that the position I am characterizing as impossible is not actually your position. I think you have abandoned it and rightly so.

Originally Posted by hoyacoug

See above. We aren't trying to secure the rights of all. We are responsible for securing the rights of those who come within our grasp (such as prisoners of war).

I suggest that we now move on to talk about who is "in our grasp." Why don't you start with answering my question above about when the enemy soldier we may justifiably kill "comes within our grasp" and why and when from a natural rights perspective he gains entitlement to due process.

[Cali Coug]

Originally Posted by UtahDan

I'm glad you have retreated from that position. It was inhibiting a discussion of the more interesting issues here. Just so we are on the same page however, after I said that these natural rights only applied between a government and the governed you said:



Paragraph one says that ALL (you even used all caps) men have these rights. Paragraph two states that governments exist to secure "those rights", referring back to the rights of "ALL." You then clarified further that just because you are not among the governed doesn't mean you aren't "entitled" to them (refering to "those rights" which "ALL" men have). I hope you now have an idea of why I think you were saying that governments are formed to secure the rights of all. It is, of course, because that is what you said. Apparently it is not what you meant and I have already told you I am glad this is the case.

Continuing now with your last post:



Now you are getting closing to articulating what I did, and this is the area I think we have common ground on. You have refined your argument now to just include "those who come within our grasp" as opposed to all others who are not within that grasp. The devil, as always, is in the details. It is hard to think of a more ambiguous or open ended standard that "within our grasp" except for maybe "reasonableness." I think I can assume, because this is the context of the discussion, that you are saying that detainees are within our grasp. What I have asked you before, and you have not yet extended your argument to answer, is what justifies the killing of a non-citizen on a foreign battlefield if that same person, once captured, is owed due process to protect his natural rights? Recall that I have already said, and stated my reasons, why I clearly think that US citizens and persons captured on US soil are different. I have already said I think they get due process. I am talking now about a foreign soldier on a foreign battle field.

So (1) do we ever have the right to kill that person (I have to assume you will say yes) and (2) if we don't kill him why is depriving him of due process more offensive to a notion of natural rights than killing him is? There may be other good reasons, but remember we're just talking about natural rights.




1. See above.

2. You can't turn that question around on me because I have not made the argument that a government has to protect the rights of "ALL." Just the opposite. I have said that the government owes the protection of those rights to the governed primarily, so from my theoretical framework, when you have a situation like the US Civil war where the south secedes, it has opted out of the social contract and its people are no longer among the governed. Their new government is now the defender of their rights. In the much more common form of civil war in modern times what you really have is either no government or a faction controlling the government. This scenario is not cleanly dealt with by the idea of of a social contract because there really is none. Same is true during a revolution. This is the limitation of that concept.

3. I'm not going to get too excited over your concept of "securing the rights of the people" because it is almost as nebulous as "within our grasp." Unless we talk about what rights are included there then you can justify almost anything under that notion. Some people think we have a right to inexpensive oil for example and tried very hard to get price caps imposed this year. A very small leap to say we are entitled to kill to ensure our supply, if you define that as a right. Just one example.




Now I'm really confused because I'm pretty sure you told me above that the position I am characterizing as impossible is not actually your position. I think you have abandoned it and rightly so.




I suggest that we now move on to talk about who is "in our grasp." Why don't you start with answering my question above about when the enemy soldier we may justifiably kill "comes within our grasp" and why and when from a natural rights perspective he gains entitlement to due process.

Good stuff. Glad to hear you are glad I have "retreated" from a position I never held (but which you attributed to me). I am glad you have retreated from your position that Buddhists like to eat green jello.

I freely admit this conversation involves some ambiguity. Of course it does! I have said as much earlier in this thread as well (and we are starting to rehash some of the arguments that have already been debated earlier, so I recommend you read those posts rather than ask for information that is already available). We are dealing with natural rights. You appear to accept the premise that people do hold natural rights. Isn't the very concept of natural rights ambiguous? Which rights are natural rights? Only the three listed in the Declaration of Independence? Hard to accept that proposition, since Jefferson argues that those listed are "among" others. Locke gives property as one; Jefferson does not. The entire debate is based on a theoretical principle. Arguing about how to apply a certain situation in the abstract will only lead to more ambiguity. The best we can do is argue that, based on the facts before us, the theory dictates a certain outcome (and we both appear to agree on that outcome).

As to your question about killing a person v capturing them, yes, I accept that killing someone on the battlefield is appropriate. In that moment, a person is presented with exigent circumstances that dictate an immediate decision- kill or don't kill. Not killing could very well lead to the death of the ponderer or his comrades. When a person is captured (comes within our grasp) those circumstances disappear. The person is not an immediate threat. We have a responsibility to respect their natural rights at that point (i.e., must afford them due process).

You could ask the very same question with those in our government compact: why is it that you could kill an intruder in your home if you felt threatened but you would have to give them due process if the police came and captured the intruder?

Your argument with the civil war is interesting (though it isn't the position the US took in the Civil War).

As to this:

Now I'm really confused because I'm pretty sure you told me above that the position I am characterizing as impossible is not actually your position. I think you have abandoned it and rightly so.

You are only confused because you continue to attribute arguments to me that I didn't make. You seemed to understand my argument earlier on in your post but then somehow forgot that argument and reverted back to believing in your misinterpretation of my argument by the bottom of the post.

[UtahDan]

Originally Posted by hoyacoug

Good stuff. Glad to hear you are glad I have "retreated" from a position I never held (but which you attributed to me). I am glad you have retreated from your position that Buddhists like to eat green jello.

I freely admit this conversation involves some ambiguity. Of course it does! I have said as much earlier in this thread as well (and we are starting to rehash some of the arguments that have already been debated earlier, so I recommend you read those posts rather than ask for information that is already available). We are dealing with natural rights. You appear to accept the premise that people do hold natural rights. Isn't the very concept of natural rights ambiguous? Which rights are natural rights? Only the three listed in the Declaration of Independence? Hard to accept that proposition, since Jefferson argues that those listed are "among" others. Locke gives property as one; Jefferson does not. The entire debate is based on a theoretical principle. Arguing about how to apply a certain situation in the abstract will only lead to more ambiguity. The best we can do is argue that, based on the facts before us, the theory dictates a certain outcome (and we both appear to agree on that outcome).

As to your question about killing a person v capturing them, yes, I accept that killing someone on the battlefield is appropriate. In that moment, a person is presented with exigent circumstances that dictate an immediate decision- kill or don't kill. Not killing could very well lead to the death of the ponderer or his comrades. When a person is captured (comes within our grasp) those circumstances disappear. The person is not an immediate threat. We have a responsibility to respect their natural rights at that point (i.e., must afford them due process).

You could ask the very same question with those in our government compact: why is it that you could kill an intruder in your home if you felt threatened but you would have to give them due process if the police came and captured the intruder?

Your argument with the civil war is interesting (though it isn't the position the US took in the Civil War).

As to this:

You are only confused because you continue to attribute arguments to me that I didn't make. You seemed to understand my argument earlier on in your post but then somehow forgot that argument and reverted back to believing in your misinterpretation of my argument by the bottom of the post.

Look hoya, you are who you are. I'm not learning anything new about you here. Apparently you are an exceedingly poor communicator because 90% of the time when someone disagrees with something you can't adequately defend you try to say that you ACTUALLY said something else entirely. So far on this board you have never been wrong, only misunderstood. Obviously since I'm engaing you this much I'm not put off enough by it to stop. You will undoubtedly respond by saying you have no idea what I'm talking about. I know. I know.

Anyway, I would just say as to the ambiguities of it all that principles like natural rights are only useful tools if they lead us to apply them in someway. That is why I was trying to get you to define and defend your notion of "within our grasp." Once you finally did that, I thought the distinction you drew about present exigencies vs. when the exigencies abate was pretty persuasive. Maybe this is because it is what I think too. :-)

Now we move to the real issue that our government has to grapple with: having been told by the supreme court that these folks must get due process, how do we do it? How much due process is enough? Does it have to be identical to what you and I get? In one respect it will always be inferior to what we would get: they will never be tried by a jury of their peers. In what other ways would "less" due process be permissible? What is the cost benefit here?

I at least give the president some credit for proposing an alternative once he was defeated in his original position (which by the way I think he COULD have maintained and ignored the courts on, though I'm glad he didn't).

[Cali Coug]

Originally Posted by UtahDan

Look hoya, you are who you are. I'm not learning anything new about you here. Apparently you are an exceedingly poor communicator because 90% of the time when someone disagrees with something you can't adequately defend you try to say that you ACTUALLY said something else entirely. So far on this board you have never been wrong, only misunderstood. Obviously since I'm engaing you this much I'm not put off enough by it to stop. You will undoubtedly respond by saying you have no idea what I'm talking about. I know. I know.

Anyway, I would just say as to the ambiguities of it all that principles like natural rights are only useful tools if they lead us to apply them in someway. That is why I was trying to get you to define and defend your notion of "within our grasp." Once you finally did that, I thought the distinction you drew about present exigencies vs. when the exigencies abate was pretty persuasive. Maybe this is because it is what I think too. :-)

Now we move to the real issue that our government has to grapple with: having been told by the supreme court that these folks must get due process, how do we do it? How much due process is enough? Does it have to be identical to what you and I get? In one respect it will always be inferior to what we would get: they will never be tried by a jury of their peers. In what other ways would "less" due process be permissible? What is the cost benefit here?

I at least give the president some credit for proposing an alternative once he was defeated in his original position (which by the way I think he COULD have maintained and ignored the courts on, though I'm glad he didn't).

Am I a poor communicator? Perhaps. Either that or you are quite adept at taking things out of context (intentionally or otherwise).

As to your questions re what due process should be afforded, I have also already touched on this previously in this thread (and perhaps the reason you are not understanding the context of the discussion is because you have not taken the time to read the rest of the thread- not that I blame you, it is quite lengthy by now).

From a natural rights perspective, the detainees would not be entitled to a certain form of due process, IMO. They would be entitled to a fair process. I believe our natural rights guarantee us a right to a fair form of process rather than a specific form of process. This answer doesn't entirely say what the US should do, however, under constitutional principles (which was the basis for the Court's ruling).

Do they deserve the same due process you or I would receive? I doubt it. We have expanded on the concept of "fairness" and created a large regime of rules that only do apply to those within our social compact. We are entitled to do that. What we are not entitled to do is provide LESS than what they should receive under their natural rights. If a military trial can be fair to the detainees, then it would be an acceptable form (as the Court has stated as well under constitutional principles).

BTW, when were you wrong on this board?

[UtahDan]

Originally Posted by hoyacoug

Am I a poor communicator? Perhaps. Either that or you are quite adept at taking things out of context (intentionally or otherwise).

I will just have to take solice in the fact that I am in good company here.

Originally Posted by hoyacoug

As to your questions re what due process should be afforded, I have also already touched on this previously in this thread (and perhaps the reason you are not understanding the context of the discussion is because you have not taken the time to read the rest of the thread- not that I blame you, it is quite lengthy by now).

Yeah I can only really keep up with OUR discussion and even so am probably wasting too much billable time on it. :-)

Originally Posted by hoyacoug

From a natural rights perspective, the detainees would not be entitled to a certain form of due process, IMO. They would be entitled to a fair process. I believe our natural rights guarantee us a right to a fair form of process rather than a specific form of process. This answer doesn't entirely say what the US should do, however, under constitutional principles (which was the basis for the Court's ruling).

Do they deserve the same due process you or I would receive? I doubt it. We have expanded on the concept of "fairness" and created a large regime of rules that only do apply to those within our social compact. We are entitled to do that. What we are not entitled to do is provide LESS than what they should receive under their natural rights. If a military trial can be fair to the detainees, then it would be an acceptable form (as the Court has stated as well under constitutional principles).

I'm surprised to hear you say that military tribunals would be okay with you. I think most folks anywhere left of center have rejected them and insisted that federal courts should be where these trials take place. I actually think this is fine as well. Here again, though, the devil is in the details. Which rights would be the baseline natural rights we would have to give them. Right to counsel? Okay. Right to confront and cross examine witnesses? Okay. Right to examine evidence? Hmmm. What if it is classified and could lead to soliders or intelligence officers being compromised. what if the accuser is an undercover asset? Right to compulsory process to get any witnesses in their favor present? Not as clear, that could include a lot of folks we can't reach. I think all of this points up, however, that this is an extremely thorny issue without a clean answer. Again, I give the administration credit for trying to deal with it although belatedly. I don't think they had to.

Originally Posted by hoyacoug

BTW, when were you wrong on this board?

Frequently, and most of the time I'm not even aware of it.

[Cali Coug]

Originally Posted by UtahDan

I will just have to take solice in the fact that I am in good company here.



Yeah I can only really keep up with OUR discussion and even so am probably wasting too much billable time on it. :-)



I'm surprised to hear you say that military tribunals would be okay with you. I think most folks anywhere left of center have rejected them and insisted that federal courts should be where these trials take place. I actually think this is fine as well. Here again, though, the devil is in the details. Which rights would be the baseline natural rights we would have to give them. Right to counsel? Okay. Right to confront and cross examine witnesses? Okay. Right to examine evidence? Hmmm. What if it is classified and could lead to soliders or intelligence officers being compromised. what if the accuser is an undercover asset? Right to compulsory process to get any witnesses in their favor present? Not as clear, that could include a lot of folks we can't reach. I think all of this points up, however, that this is an extremely thorny issue without a clean answer. Again, I give the administration credit for trying to deal with it although belatedly. I don't think they had to.



Frequently, and most of the time I'm not even aware of it.

In the context of a discussion on natural rights, I think the standard required is one of fairness. I think there are limitless possibilities for forming a standard that provides fairness. Some may include counsel, some may not. We are only interested in if the person got a fair shake or not when all is said and done. Our constitutional standard, however, may require more.

As for this administration, they are only dealing with it because they DID have to (once their hand was forced by the Supreme Court). If not for that, these people would be sitting in a prison cell without a second thought to fair treatment or their rights. I don't give the administration any credit for doing what they were forced to do.

[UtahDan]

Originally Posted by hoyacoug

In the context of a discussion on natural rights, I think the standard required is one of fairness. I think there are limitless possibilities for forming a standard that provides fairness. Some may include counsel, some may not. We are only interested in if the person got a fair shake or not when all is said and done. Our constitutional standard, however, may require more.

As for this administration, they are only dealing with it because they DID have to (once their hand was forced by the Supreme Court). If not for that, these people would be sitting in a prison cell without a second thought to fair treatment or their rights. I don't give the administration any credit for doing what they were forced to do.

This caused me to look at the Hamdan case again. Interesting to note that this man is a Yemeni national captured more or less on a foreign battlefield who you and I both agree gets less due process than we do.

What would you think about having a tribunal for such a person where evidence is presented to a trier of fact, but any part of it that is classified and could lead to military or intelligence assets being killed or compromised is recieved by the trier of fact outside of the presense of the defendant and his counsel?

[Cali Coug]

Originally Posted by UtahDan

This caused me to look at the Hamdan case again. Interesting to note that this man is a Yemeni national captured more or less on a foreign battlefield who you and I both agree gets less due process than we do.

What would you think about having a tribunal for such a person where evidence is presented to a trier of fact, but any part of it that is classified and could lead to military or intelligence assets being killed or compromised is recieved by the trier of fact outside of the presense of the defendant and his counsel?

I find this issue problematic, and I don't know that I have a good answer. I strongly believe in a fair trial, but I also recognize the need to maintain national security. My biggest problem with this issue is that evidence dubbed "classified" may or may not actually be highly sensitive. Would it lead to the death of others? Frequently, that is very hard to say. The detainees presumably have little communication with the outside world, so it wouldn't be easy for sensitive information to get out anyways. But, there may be rare circumstances where divulging certain information would creat the potential for harm to the nation and to its agents.

I again would have to simply relate back to the "fairness" standard. Could a system be devised whereby the defendant is able to properly defend himself and the nation's secrets could remain guarded? I know it happens in the US criminal system from time to time, so presumably such a system has been developed. I don't practice criminal law, so I can't intelligently speak to how such a system plays out in practice.

Thoughts?