First they came for the communists, and I did not speak out—because I was not a communist;
Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist;
Then they came for the Jews, and I did not speak out—because I was not a Jew;
Then they came for me—and there was no one left to speak out for me.
--Pastor Martin Niemöller
The claim that the "Constitution doesn't apply to foreigners" didn't begin with the Bush administration, but it gained a lot of momentum under it. So much so that I would guess everybody reading this article (thanks to both of you) has heard that claim multiple times and may even believe it to be legally sound. It isn't.
The Constitution covers a lot of ground, so I am not going to pretend to offer a treatise on each provision that may or may not apply to foreigners. Instead, let's keep this to the context in which the claim currently is being made in the news- that foreign terrorists have no constitutional rights under any circumstance.
First, let's begin where any constitutional analysis should begin- its text.
The Fifth Amendment provides:
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.
The amendment expressly uses the word "person." It doesn't say "citizen" (that word is used elsewhere as we shall see below). The constitutional protection afforded to all "persons" of their rights to life, liberty and property may sound familiar. Those are almost identical to the "unalienable rights" cited in the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The Fifth Amendment, then, swaps "pursuit of Happiness" with "property," and establishes due process of law as the only permissible mechanism by which the federal government may seize one's life, liberty or property. The source of these rights, according to the Declaration of Independence, is not a legal document but the Creator. The rights are natural rights- rights held by all "persons" merely as a consequence of existing. They are not granted by the government, and only in limited circumstances can they be removed by a lawful society.
Of course, this isn't the only place in the Constitution where due process makes an appearance.
The Fourteenth Amendment provides:
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.
Again the Constitution notes that all "persons" have a right to life, liberty and property, and that those rights shall not be deprived except by due process of law. Here the contrast to "citizen" could not be clearer. "Privileges and immunities" of citizens may not be abridged by states (which makes sense), but more fundamental rights- our natural rights- may not be deprived whether or not we are a citizen. The Amendment further notes that all "persons" within the nation's jurisdiction shall enjoy equal protection of the laws. Equal to whom? Everyone else. There is no dual-layered system here. Equal means equal.
The Fifth Amendment and the Fourteenth Amendment are, obviously, amendments to the original text, designed to add additional clarity and security for the protection of civil liberties. Even the original text, however, establishes the importance of due process. Article I, Section 9 provides:
The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
The writ of habeas corpus, for non-lawyers, is a petition to a court for review of the lawful status of that person's detainment (i.e., due process). This provision acts as a restraint on the government's power to declare an emergency and suspend a person's right to such review.
Quite clearly, the Founders were very concerned that the government would attempt to unlawfully detain persons and deprive them of their natural rights and liberties. Alexander Hamilton, writing in Federalist No. 84 powerfully argued:
[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone ... are well worthy of recital: ‘To bereave a man of life ... or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.'
The Supreme Court has also had a chance to weigh in on the applicability of the Constitution to foreigners, and detainees specifically. In 2008, the Court was asked to determine if enemy combatants held at Guantanamo Bay, Cuba (and who were non-US citizens captured overseas) had a constitutional right to judicial review of the legality of their detention (see Boumedine v. Bush). The Bush administration argued that Cuba held technical sovereignty over the military base at Guantanamo Bay, and was merely leasing the land on which the base was located to the United States (and consequently, the Constitution did not apply). The Court held:
The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.
Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited" but are subject "to such restrictions as are expressed in the Constitution." Murphy v. Ramsey, 114 U. S. 15, 44 (1885) . Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803).
Clearly, the Constitution can, and often does, apply to foreigners- even those who are not located on US soil. The judicial test for determining the scope of protection of constitutional rights afforded foreigners is somewhat complex, but as a general rule, when an issue deals with a fundamental right- a natural right- courts will be far more likely to hold that the Constitution does apply and afford certain protections to the subject in question. The location of the subject is also highly important. The more control the US has over the territory holding the subject, the more likely it is the Constitution applies (on US soil, it definitely applies).
There are lots of variables that could apply in determining the reach of constitutional protection to foreigners, but here are a few scenarios (listed from less likely to have constitutional protection to definitely has constitutional protection:
- Non-citizen, detained on foreign soil
- Non-citizen, detained in territory controlled by the US but not part of the US
- US citizen, detained by US authorities on foreign soil
- Non-citizen, detained in the US
- US-citizen, detained in the US
Recall the language of the 14th Amendment- all persons within the jurisdiction of the United States shall have equal protection of the laws. A non-citizen who is captured within the US definitely has constitutional rights.
As part of the War on Terror, the Bush administration first singled out non-citizens detained on the field of battle overseas as those who had no constitutional rights. Clearly, individuals detained on the field of battle during a conflict with the US have very limited constitutional rights and the courts will grant wide latitude to the executive branch in dealing with those detainees (at least until the conflict calms a bit and a more thorough review of a detainee's status reasonably can be conducted). After capture, the Bush administration moved many of those detainees to Guantanamo Bay, Cuba, a territory effectively controlled by the US, and argued for indefinite detention of the detainees with no constitutional rights. In a sign of how detached from legal reality the administration became, Attorney General Alberto Gonzales even tried (laughably- or is it tragically), to argue that the Constitution doesn't actually grant anyone the right to seek habeas corpus- let alone the Guantanamo detainees.
Unsatisfied with indefinitely detaining only foreigners, the Bush administration then argued that Yaser Hamdi,a US citizen captured in Afghanistan and then held in Guantanamo Bay, did not have any constitutional rights, including habeus corpus rights. The Court disagreed, but an important and deadly shift in US policy had begun.
With Hamdi, the government ceased relying on a detainee's nationality to argue they had no constitutional rights and instead argued that conduct itself was grounds for eliminating constitutional rights. Hamdi- an American citizen- could be stripped of all natural rights with no due process based on allegations of improper conduct overseas. The absurdity of such a position should be self-evident: how do we know the detainee's conduct was, in fact, improper/illegal without due process of law? Are we to accept that the executive branch can determine, of its own accord, that a person has violated US law and therefore has no constitutional rights- including due process? Such an argument indeed gives the executive branch the power to "switch on or off" constitutional protections and render them totally void. This is precisely the "more dangerous engine of arbitrary government" Alexander Hamilton described.
Now, however, some politicians and media pundits want to take this even one step further. Why not eliminate any constitutional protection for non-citizens who are captured within the borders of the United States? The Christmas Day bomber has given such fools the ammunition they sought to make that claim.
Senator Collins (R-ME) has strongly condemnedthe Obama administration for its decision to "treat a foreign terrorist who had tried to murder hundreds of people as if he were a common criminal." The criminal act in question was an attempted bombing of an airplane as it was attempting to land in Detroit, Michigan. In other words, the criminal act unquestionably occurred on US soil. Despite express language within the Constitution itself about rights afforded to individuals within the jurisdiction of the United States, Sen. Collins (and many others) believe that such provisions do not apply to terrorists- no matter where the terrorists are located. Nevermind the fact that "terrorist" is almost incapable of being defined (you get the feeling that to Sen. Collins, it only means a Muslim who tries to hurt Americans in the name of religion). If the government decides you are a terrorist, the government can detain you, and then it can strip away all constitutional rights without any due process whatsoever. In fact, it can then fly you out of the United States and hold you indefinitely in Guantanamo Bay (or wherever else suits its pleasure).
So there you have it. For millions of Americans today, the ultimate factor to decide if you enjoy constitutional rights is whether or not you are a terrorist. Your right to a trial, where you could argue the government got the wrong person, is eliminated. Your right to counsel is eliminated. Your right to remain silent- eliminated. You might have valuable information, after all. There is no presumption of innocence. As Jack Bauer would say, "THERE IS NO TIME!" On the mere accusation of terrorism, your liberties are totally stripped away. Due process be damned.
Today, Senator Collins is applying her constitutional right/torture litmus test to a non-American captured on American soil. Ask yourself- how big of a step is it from there to denying constitutional rights to an American captured on American soil because they might be a terrorist? Sarah Palin is already making that argument:
For example, there are questions we would have liked this foreign terrorist to answer because he lawyered up and invoked our U.S. Constitutional right to remain silent...Our U.S. Constitutional rights. Our rights that you sir [PALIN ADDRESSES MALE VETERAN IN AUDIENCE] fought and were willing to die for to protect in our Constitution. The rights that my son, as an infantryman in the United States army is willing to die for. The protections provided—thanks to you sir [PALIN ADDRESSES MALE VETERAN IN AUDIENCE]—we’re going to bestow them on a terrorist who hates our Constitution and wants to destroy our Constitution and our country? This makes no sense because we have a choice in how we’re going to deal with the terrorists. We don’t have to go down that road.
Do you hear that? It is OUR Constitution. These are OUR rights. We have earned them due to our incredible foresight at having been born here. We give out these rights of life, liberty and property only to a select group (that group being "us," not "them"), but we reserve the right to remove those rights if, in our sole discretion, we judge you to be an evil person. Yes, Sarah Palin is an originalist, and yes, the text of the Constitution is clear that those rights are given to ALL persons, and yes, we even amended the Constitution to ensure that "person" really meant all persons. Except terrorists (which we have the discretion to define). Not them. And maybe not a few others, now that I think about it. Like the communists. Or the trade unionists. Or the Jews. Or maybe just you.
Check us out at http://www.thefourthbranch.com