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 condemned the 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.
NOTE: If you enjoyed this article, you can read a continuation of the discussion here.
[...] other other Publius describes the way in which the categories of persons subject to denial of due process rights in the War on Terror has regularly and rapidly expanded over the last 9 years. We are perilously [...]
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I must admit to being surprised at the longevity of the Miranda-Underwear Bomber story. It brings into question the state of mind of the critics of the Administration. They seem to be able to hold two seemingly contradictory concepts in their mind simultaneously. First, that this is a Christian nation, divinely-inspired by the Almighty to recognize the rights He bestowed on all mankind. Second, that these rights are only provided to those who, by birth or application, are granted citizenship to this country and not to those born feet from the American border or to parents able to claim citizenship.
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Hi there,
Reading along, I find there’s is a leap in this section if I am not mistaken:
They initially made this claim pre-Boumediene, did they not, when their assumption, and indeed precedent (Eisentrager), held that Constitutional protections did not apply to foreigners on foreign soil — which Guantanamo Bay was thought to be pre-Boumediene (that’s why they bothered to set it up)?
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Ah cripes, disregard that comment. I’m focussed on the territorial question right now, and I just glossed that the point there was the U.S. citizenship. And I knew that about Hamdi, too! Coffee, please.
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Just looking at the Hamdi case again, it’s not clear from the summary of facts I read that Yasser Hamdi was ever held at GITMO, and certainly not that he was there at the time that the government claimed it had the power to detain him as an enemy combatant without issuance of the Habeas writ — because in fact he was at a military brig in Virginia. So if the concern is what the Executive claims its power is and not what the Court finds it to be, then it seems we went the Full Monty (U.S. citizen held on U.S. soil without charge or issuance of Habeas writ).
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Michael,
Hamdi was initially held at Guantanamo Bay, Cuba. He was transferred at some point after the US learned he was an American citizen, undoubtedly over legal concerns about his status. As you note, he was held on a military base in Norfolk, Virginia. The Bush administration’s position was that because Hamdi was an “enemy combatant,” they could hold him indefinitely without habeus rights. The Supreme Court disagreed, after swatting down the Fourth Circuit’s poorly-reasoned decision which initially upheld the Bush administration’s actions.
This was close to the situation I described of “American caught on American soil,” but while Hamdi wound up on American soil, it was only after he was transferred there for detention. The government’s approach with Hamdi was certainly egregious and ought to be troubling to all Americans (particularly that the 4th Circuit actually agreed indefinite detention was acceptable for him), but it is, at least, still one small step away from catching an American on American soil and detaining him indefinitely.
It is worth noting that Hamdi was held in Virginia for the same reason Padilla was held there- the 4th Circuit was thought to be the most likely to side with the Bush administration’s arguments against a writ of habeus for the detainees. Interestingly, even the 4th Circuit eventually smelled something rotten, and Judge Luttig wound up resigning over the matter.
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That is certainly a distinction. I had taken you to be addressing whether/to what extent the Constitution holds force on various territory and with respect to various persons. Why is the location of the ongoing detention not the deciding factor in such determinations? I read your “detained” to mean “held”; obviously you meant “caught,” which is probably the right meaning of the term. But why is that the operable distinction? I.e. if a person is held in the U.S., it would seem the Constitution should apply to them equally if they were initially detained here or elsewhere. Why, otherwise, would it have mattered in the early legal calculations of the Bush Admin. where held those they detained in Afghanistan in 2001 — why set up a prison at Guantanamo Bay in the first place? The detainees weren’t detained in the U.S, but apparently the administration expected it would matter in court where they were held. (Yes, I would accept, “They were morons” as an answer, but I’m not sure it would really be the reason.) Clearly, they
Also I still wonder if claims to certain powers by the Executive is the right measure to how close we are to their being established, when the Court has been consistently rejecting the claims (if not in a very timely way)?
Last, do you read Boumediene as an unequivocal statement that Guantanamo is “within the jurisdiction” of the United States? Because your argument that if that is case the Fourteenth Amendment guarantees those we hold there not just the right to make Habeas claims, but in fact denies them no right whatsoever not also reserved for citizens (equal protection), including full civilian jury trial unless charged with war crimes under the law of war seems airtight. But unless I am mistaken, that is not how the decision has been read in the legal community — I take it to have been interpreted to grant Habeas rights to all detainees but leave open the question of the extent of other process rights. Do you know what the consensus is (even if you think it is mistaken)?
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Disregard that stray “Clearly, they.”
Also: thanks for the response!
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This is a gorgeous, forcefully persuasive, and critically important set of thoughts. It should be mandatory reading.
My only critique is that you do not close the circle and demonstrate that the change of Administrations has done little to alter the government’s formal posture towards the issues you raise here — Gitmo is not closed, the government continues to reserve the right to do all of these things within the sole and unchecked fiat of the Executive, and indeed has debatably taken things further by adding assassinations to the list of things that the President can order someone to do without even bothering to get the approval of another branch of government.
The issue is not strictly a partisan one, although I very much enjoyed your pointing at Sarah Palin and her claim to originalism, contrasting the visceral opposition to due process in today’s political dialogue with the original intent expressed in Fed. 84. But I rather strongly doubt that either Palin or her target audience have bothered to think through what being an “originalist” in this context actually obligates them to do. Which is why this ought to be mandatory reading for that crowd.
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Michael,
You pose good questions. I would respond that the text of the 14th Amendment may provide some guidance here. The amendment states that all persons have a right to life, liberty and property which cannot be removed without due process. Separately, those within the nation’s jurisdiction have a right to equal protection. These are, in fact, two separate provisions. This is relevant, potentially, because a detainee could have due process before being brought within the jurisdiction of the US. If he is then brought to the US after being convicted with due process afforded, I don’t know that a new civilian trial would need to be held. In that instance, due process occurred at a discrete moment in time and the Constitution would not require its repetition solely because of a change in the detainee’s location. The prisoner could then have equal protection of the laws in the US without having a new trial. He could be imprisoned in a military base, in a federal prison, etc., all of which would be equal treatment under the laws (i.e., equal protection wouldn’t at that point mandate a civilian detention).
With respect to Boumediene, the opinion isn’t entirely clear to me. The Court drew a distinction between de jure and de facto control and found the US had de facto jurisdiction even if not de jure. This would suggest to me that for those detainees brought to Guantanamo with no prior due process having been afforded, they have a right to a civilian process. Those who had prior due process afforded would not have a right to a re-trial (neither due process nor equal protection would mandate a re-trial). All detainees would have an ongoing right to file claims which had not been previously adjudicated with proper due process (or to appeal prior adjudications). I don’t find this to be the generally accepted understanding of the Court’s ruling, but it makes sense to me.
Thoughts?
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T.L.,
Glad you enjoyed the post. With respect to your critique, the Obama administration has not moved nearly as fast as many would have hoped to right prior wrongs. That said, while Gitmo is open, its closure has been announced. Attorneys are compiling case materials against Gitmo detainees and preparing to afford them due process. The Supreme Court has at least checked the power of the executive to do some of the more outlandish things proposed (or undertaken) by the Bush administration. It took a while, and the answers are still not perfect, but we are a long ways from where we started in the 4th Circuit too. In short, we have a ways to go but I don’t think it entirely fair to argue the Obama administration hasn’t altered our course in some significant ways.
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Publius,
In general, I think your point about whether due process was afforded at the time and place of capture — due process appropriate to that time and place (and reason) of detention being the key distinction — being a key determinant of the level of process that is guaranteed going forward under various states of detention is a very astute one, though I am far from well-placed to know what really is the key question. It seems to me on that view, however, there would be little basis for a distinction between citizens and non-citizens. If a U.S. citizen was detained on foreign territory as an enemy combatant, he would have equally little right to civilian trial as would a non-citizen. Equally, if he was detained on civilian terror charges, both would seemingly have a presumption of a right to a civilian trial. I believe, in the Hamdi decision, Stephens concurred with Scalia that Hamdi, owing to his status as a citizen and non-member of the U.S. military, should be tried for treason as a civilian, whereas others in an otherwise equal position should be held as (unlawful) enemy combatants. My sense is that both Justices views have evolved considerably since 2003, however.
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Michael,
I think on this view there is still room to treat US citizens differently than foreign nationals captured overseas. So, if anyone is captured in the US, they have the full protection of Constitutional rights. If a US citizen is captured oustide the US, they have full Constitutional rights (although some reasonable delays in affording those rights, depending on the circumstances, can be appropriate). If a non-US citizen is captured outside the US, they have at minimum due process rights (and some reasonable delay in affording due process rights can be appropriate). If someone is brought to the US and the rights listed above have been afforded, equal treatment applies but no new trial is needed. If they have been brought to the US and the rights listed above have not been afforded, full Constitutional protections apply.
I acknowledge this is not the state of the law right now, but I think it is consistent with the text of the Constitution.
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[...] I would like to appeal to lofty principles of natural rights to make my argument (and I have before), but for those who reject that argument out of hand, let me appeal to a more base instinct: [...]
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