10 February 2011

The U.S. Constitution offers protection to non-Americans

A post I wrote last week ("Guantanamo detainee dies in custody") has elicited a vigorous and heated interchange in the Comments section.  I normally leave comment debates alone as long as they don't deteriorate into interpersonal "ad hominem" attacks, but one comment that was made today warrants rebuttal:
"Constitutional right? He's a terrorist, NOT an American citizen, he has NO Constitutional right"
That's wrong.  Ethically wrong - AND Constitutionally wrong.  Here's a repost of an article I posted one year ago:

Selections from another interesting essay by Glenn Greenwald at Salon:
...one of the most pervasive myths in our political discourse: namely, that the U.S. Constitution protects only American citizens, and not any dreaded foreigners...

First, the U.S. Supreme Court, in 2008, issued a highly publicized opinion, in Boumediene v. Bush... although the decision was 5-4, none of the 9 Justices -- and, indeed, not even the Bush administration -- argued that the Constitution applies only to American citizens. What divided the Boumediene Court was the question of whether foreigners held by the U.S. military outside of the U.S. (as opposed to inside the U.S.) enjoy Constitutional protections...

Indeed, the whole reason why Guantanamo was created was that Bush officials wanted to claim that the Constitution is inapplicable to foreigners held outside the U.S. -- not even the Bush administration would claim that the Constitution is inapplicable to foreigners generally.

The principle that the Constitution applies not only to Americans, but also to foreigners, was hardly invented by the Court in 2008. To the contrary, the Supreme Court -- all the way back in 1886 -- explicitly held this to be the case... Over 100 years ago, the Supreme Court explicitly said that the rights of the Constitution extend to citizens and foreigners alike. The Court has repeatedly applied that principle over and over.

16 comments:

  1. It goes back rather further than that:
    "We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with inherent and inalienable rights; [...]" --Declaration of Independence as originally written by Thomas Jefferson
    "Inalienable", meaning no government can remove the right.

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  2. For the most part, the constitution functions as a limitation on the power of the US government. Because the general focus is on the US government itself, rather than on those dealing with the US government, it only makes sense for the limitations to apply notwithstanding the nationality of the individual dealing with the US government.

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  3. Marc, the Declaration of Independence is not the law of the land.

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  4. This is very true. The Constitution applies to anyone in the US. Legal, illegal, criminal or not. A lot of folks also wonder how that works with voting rights. Well, those are covered as well. The Constitution leaves voting rights to the States, who all have nice laws allowing only American Citizens (sometimes Nationals) to vote.

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  5. Thanks for the edification, Stan- this is one post that needs to be seen, read and taught in... schools (also fit for home schooling, Constitutional Tea Party Reunions, and Congress).

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  6. The framers of the US Constitution chose, debated, argued, revised, debated again and then ultimately agreed to precisely which words to use in each sentence. When they state "Citizen", that's what they mean. And when they use "person" or other word that encompasses a larger group, that's what they meant.
    Read the document. It is *not* lightly written, and should *not* be lightly read.

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  7. If the Constitution protects non-Americans, what's the point of being an American citizen? Oh wait...the Mexican's have already figured this out...., sneak in, use medical facilities for free, work and get paid but don't pay taxes...when you want to go home to visit family, get picked up, fed, free trip home, restart process all over again....I think giving terrorists and criminals any kind of rights is wrong...you break the law, you pay, plan and simple. I can forsee that the bleeding hearts of this country is going to be its downfall. The United States of America will fall because someone is worried about what rights a terrorist or criminal has had violated....forget about who they've killed, maimed or ruined life for....WAKE UP people! Treat criminals and terrorists like criminals and terrorists, not your auntie.

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  8. Hip! Hip! Let's treat them as terrorists and criminals when they're charged and convicted of being terrorists and criminals- instead of torturing and jailing them indefinitely without charge like they do in other countries.

    Otherwise, what's the point of being an American citizen?

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  9. EXACTLY! What's the point of being an American citizen if we allow NON-American citizens to rule our lives? The whole point behind Gitmo is to isolate these terrorists from the rest of their cell and keep them from plotting more attacks. Do you really think that they're going to openly admit that they're terrorists? You want to go home? You want to go back to your country and family? Then admit your crimes and associations with the terrorists and we'll be happy to send you back.... If not, then you're going to stay locked up until you either admit it, or we find someone to point the finger at you...

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  10. Anon- Thanks for demonstrating how a certain faction (and a rather large one that) see what they want to see, hear what they want to hear, no matter what...

    I'm sure you'll agree with that too!

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  11. And for the longest time Women, Children and Non-White people were considered property and not therefore covered under the Consititution. The laws devalued them which allowed for the injustices of oppresion and slavery.
    We sometimes forget that the founding fathers knew better but compromised. We have been fighting ever since over that ability to exclude groups as deemed necessary at any given circumstance.

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  12. Stan, you voted for Obama didn't you? The part of the group you're talking about is the United States Marines....what's your excuse? Men and Women die so people like you can spout your bleeding heart crap all over the place.

    Anon? Slavery? really? you're going to play like that? Slavery was a terrible thing that happened long before anyone that's reading this was even thought of, they've been apologised to, let's stop playing the slavery card, as long as people keep bringing that up we'll never get past it. This was about terrorists being held without charges, not terrorists being forced to do slave labor. If you're not a US citizen, you shouldn't have the options of shouting constitutional rights, we don't get special treatment in their countries when we break the laws, so why should they?

    God, bleeding hearts buttons are soooo easy to push.

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  13. Actually, I never thought of the US Marines when I wrote that Anon... And one of my all time heroes is none other than General Smedley Butler, perhaps the most decorated Marine of all time. I strongly suggest you read up on him, you can start with his most famous pamphlet- War Is A Racket. Call me a bleeding heart if you like, call me whatever... just remember that when blowhard chickenhawks like Rush, Bush and Cheney get themselves excited to send you guys out there for no good reason to do what they did everything to get themselves out of- remember it's this bleeding heart and others like him demanding you be sent home, and have their butts sent in your stead...

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  14. Marine's pray for war or other conflicts so that they can do their jobs....bleeding hearts only make things harder for us by having our supplies limited or cut, General Black Jack Pershing had the right idea, and until someone grows some like him and do what he did we'll continue to have problems with Taliban.
    Hold hands with Obama, hug a tree and sing Kumbaya you'll remain safe, because we're fighting to give YOU that right, not non-citizens. Have a nice life Stan, for life as we knew it has come to an end and will never go back to the way it was.

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  15. You're right Marine- when I grew up, people thought twice about those who were born with silver spoons in their mouths, flew warplanes over their own country (before going AWOL and having his daddy run cover), started wars in countries for his fellow millionaire oil friends only to corner the guy who attacked our country so that he could then let him go in the same breath and say he doesn't care or even think about him.

    As for Obama, dollars to donuts, I've already criticized him more than you ever will; and if I were you, I'd relax- he's gonna keep us in Afghanistan a good long while just to prove that we can be even dumber than the Russians.

    Oh... and ol'Smedley coulda had Blackjack's nuts for breakfast.

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  16. Larry, and yet it's what all the laws are supposedly based on.

    Moot point.

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