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.”
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 The many provisions for declaring war and such like are in the main body of the Constitution and might be considered repealed by the 5th (as the provision that states must return escaped slaves is not considered to be current constitutional law).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.
We need to have a national conversation about how to cope with “non-military combatants.”
It is doubtful normal civilian criminal law will work, and I don;t think they are covered by the Geneva Conventions.
They are in between somewhere, and we need a clear policy of how to do combat with non-military “soldiers.”
I don’t really want to get into a heated debate in comments, but I totally disagree with save_the_rustbelt. I think we had that national conversation when the Senate debated ratification of the Geneva conventions which are the law of the land.
They are also international treaties. I don’t think it is always a good idea for the USA to consider itself free to unilaterally renegotiate treaties with itself (note I think this is sometimes a good idea — just not this time).
The Geneva Conventions are consistent with trying prisoners as war criminals. To be covered by the Geneva conventions is not necessarily to be imune from prosecution.
However any treatment of any prisoner as a criminal and not a prisoner of war must follow not proceed some sort of trial. Captured combatants are prisoners of war until violation of the rules of war are determined.
I think there must not be any option other than ordinary civilian criminal proceedings and Geneva convention proceedings. I see nothing to be gained by te invention of a third category. In contrast I see a direct threat to our constitution in an effort to find a gap where it says there is none
Recall the conventions are part of “the supreme Law” of the USA as per Article VI as partially quoted below
“…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; …”
We should still have a national conversation about this, rather than letting presidents “do their own thing.”
Then comes the problem of the US following rules in combat with people who care nothing for the rules.
We need a discussion.
There is no such thing as a “non-military combatant.” It is GWOT invention that has been used to justify all kinds of acts that we would have considered beyond the pale 30 years ago.
“Then comes the problem of the US following rules in combat with people who care nothing for the rules.”
I see no problem for us following rules even though there are those who don’t when it comes to combat. It’s our conscience not theirs.
And I’m not talking about the actual fighting. There are other issue I take with our current concept of “going to war”.
Yes, the discussion has been had with Geneva. To think that what we are facing today is somehow new and unique to the human experience of beating up on each other is just not being real about how rotten people have shown to be through out recorded history.
“…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;….”
That’s an exception that a DC lawyer in a cheap suit could drive a Mack truck through. In effect anything goes until we regain a responsible government and a truly Constitutional court. Define “public danger” in one word or less. Taliban, or Al-quida or any current bogeymen.
“when in actual service” does not apply to the Taliban and al-Qaeda who are not serving us.
Also, and much more importantly, that qualifies the requirement for an indictment and none of the other provisions. I’m not a lawyer and I may be wrong, but this is surely a matter well covered by precedent.
In any case, my point was that there is no distinction in the 5th (or 3rd, 4th, 6th, 7th, 8th or 9th) between citizens and non citizens.
i been saying this since whenever. Trouble is, the constitution is only a piece of paper if the people will not defend it.
we have rusty who seems to reason “they are bad guys, so the normal rules of due process do not apply to them.” he seems to forget the normal rules were created to determine who the bad guys are, and not to punish people because the president calls them bad guys. this is EXACTLY what the bill of rights is all about.
and Jack, who is a good guy, seems ready to lay down in front of that cheap lawyer, especially if his name is John Roberts. The law is capable of great evil, unless the people insist it not be used for manifest evil.
which the people of America no longer do.
You may want to include the 14th which was passed just after the Civil War. “All 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Unless you were black back then, you were protected.
You may want to include equal protection under the 14 amendment also. “The equal protection clause was added to deal with the lack of equal protection provided by law to all in the course of administering justice in the states who had Black codes. Under black codes blacks could not sue, give evidence, be witnesses, received harsher degree of punishment, etc. The principal author of the Equal Protection Clause, John Bingham stated that phrase “equal protection” under the Fourteenth Amendment means that “It confers upon Congress power to see to it that the protection given by the laws of the States shall be equal in respect to life and liberty and property to all persons.” The inclusion of the words equal protection along with the words life, liberty and property provided protection for all persons from arbitrary taking of life, imprisonment or confiscation of property”
Beverly could tell you better than I how this plays into noncitizens of the US.