[Marxism] The Slavery Amendment and The Guantanamo Prisoners

[Brian Shannon <Brian_Shannon@xxxxxxxxxxx>]

>What about the Guantanamo situation suggests "servitude"? I haven't
heard about Gitmo prisoners being subjected to forced labor or assigned
to any form of work detail, for that matter.

>Stuart Lawrence
_________________

I had just finished rewriting this when I saw Stuart's question. The 
answer is implied in the amendment itself where it states that 
"involuntary servitude" is acceptable so long as it is for a crime and, 
of course, prisoners are criminals.

However, let's look at the word slavery as well. You can be a slave, 
i.e., held by another without being required to work. You are a slave 
as soon as you are captured, whether in Africa in the 18th century or 
in Afghanistan. You are a slave if you are put a slave ship for 
transportation or strung in a line or in a holding pen.

The definitions given in googling "slavery" point out that slavery, 
above all, means that you are under the control of another person, 
although "ownership" is also emphasized. But aren't prisoners who are 
completely under the control of a prisoner system that says they can be 
held indefinitely without trial--aren't they slaves?

Brian
_________________

13th. Amendment to the U.S. Constitution

Section 1. Neither slavery nor involuntary servitude, except as a 
punishment for crime whereof the party shall have been duly convicted, 
shall exist within the United States, or any place subject to their 
jurisdiction.

Section 2. Congress shall have power to enforce this article by 
appropriate legislation.
_____________

Article 1, Section 9, Clause 2:

The privilege of the writ of habeas corpus shall not be suspended, 
unless when in cases of rebellion or invasion the public safety require 
it."
____________

When thinking of the legal rights of prisoners in Guantanamo, it is the 
writ of habeas corpus that is most commonly referenced. Its importance 
as one of our freedoms is indeed very striking, for it is the only  
"right" that is actually part of the original Constitution rather than 
the 10 clauses of the original "Bill of Rights."

However, no one ever thought that any sort of confinement would, in any 
case, be for very long. The phrasing of the habeas corpus clause 
implies only a "suspension." Excluding scientific use of the word 
involving liquids and the holding of something, "suspension" means  
"temporary" or "interruption." It certainly does not mean three years 
as at Guantanamo.

Notice also that the constitutional description also implies that some 
sort of formal act must “suspend” habeas corpus.  As noted by Justice 
Scalia in Hamdi v. Rumsfeld, neither Congress nor the Executive have 
passed an act or made a finding or declaration suspending habeas corpus 
for U.S. prisoners at Guantanamo. Perhaps the reason for this is that 
the government lawyers would have to deal with the "temporary" 
character of the "suspension" of habeas corpus.

However, an even more powerful legal case might be made for the 13th 
Amendment, the amendment that outlaws slavery. The words are an exact 
fit for the prisoners at Guantanamo. There is "involuntary servitude",  
"duly convicted ... for crime", and "any place subject to their 
jurisdiction."

I believe that the wording of the 13th Amendment clarifies what the 
"founders" meant when they included the habeas corpus clause. If the 
Supreme Court used it as a guide, it would erase invidious distinctions 
regarding "enemy combatants" and "territorial jurisdiction."

Certainly Guantanamo Bay is "subject to [the United States] 
jurisdiction," whether jurisdiction is used in a legal sense or in the 
sense of control. It is a described place on earth occupied by the 
United States; i.e., it is not the high seas, Antarctica, or outer 
space. It is under the control of the U.S. military, whose ultimate 
commander-in-chief is the President of the United States. His or her 
power derives solely from the U.S. Constitution.

The further advantage of the 13th Amendment argument is that is not 
restricted to "citizens" of the United States. This is because when it 
was passed, slaves were not citizens. In order to end slavery, the 
amendment had to describe a condition affecting persons in general. 
Thus we have "neither slavery nor involuntary servitude" without any 
reference to what class of persons to whom such condition may apply. 
Citizen is in fact defined in the 14th Amendment, but the word citizen 
does not appear in the 13th Amendment, only the word "party."

Most appropriate to the Guantanamo prisoners is the distinction that 
there can in fact be confinement for crime IF the person (NB again, not 
citizen, but "party") is "duly convicted." To be convicted, there must 
be trial, possibly under court martial rules, but in any case one in 
which there must be charges and evidence.

from Brian Shannon


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