Due process rights

Lifted from Robert Waldmann’sStochastic Thoughts:

32. Note that the US constitution grants the same due process rights to citizens and non citizens.

This time I pick on Steve Benen who wrote

“The drones themselves are a fairly new tool, but the use of technology is tangential to the underlying point about the use of force, and in the case of U.S. citizens accused of terrorism abroad, due process rights.”

My comment

You seem to be of the impression that the due process rights of US citizens are different than the due process rights of non citizens ” in the case of U.S. citizens accused of terrorism abroad, due process rights.” There is no basis for this view in the constitution. The 5th amendment declares that there are due process rights (its framers certainly saw this as recognizing a fact not creating a right). It contains no reference at all to citizenship.

Here is the 5th Amendment

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

How do you imagine that an amendment which begins “no person” implies that due process rights are an issue only in the case of citizens ?

This isn’t just my reading of the text (which is not at all ambiguous). US courts have consistently held that non citizens have due process rights (note I didn’t say “all non citizens”).

Hmm it sure sounds like the 5th amendment bans war which involves killing people without giving them trials first. The many provisions for declaring war and such like are in the main body of the Constitution and might be considered repealed by the 5th (as the provision that states must return escaped slaves is not considered to be current constitutional law). Similarly the common law right to use deadly force in self defence might be considered to have been eliminated by the 5th amendment.

But I might not be crazy and I don’t imagine for a second that the 5th amendment banned war or self defence. I do insist that it allows no distinction between US citizens and non citizens. The Civil war was particularly horrible, but the legality of union troops killing confederate troops in battle was not (widely) contested.

It is clear that the 5th amendment concerns killing people who are in government custody, that is the death penalty. It does not refer to killing people who haven’t been captured and can’t feasibly be captured.

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