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.
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A few weeks back, we posted an article on the suspicious deaths of three inmates at the US detention facility in Guantanamo Bay, Cuba. Much of the reporting on the issue has been conducted by law students at Seton Hall, led by Professor Mark Denbeaux.
In an email to The Fourth Branch, Prof. Denbeaux thanked us for drawing attention to the situation and noted that Seton Hall today added additional information to its already extensive analysis of the Department of Defense’s records and claims. Their updated analysis can be found here.
While we can’t conclusively say that the inmates were murdered, we can conclusively say that the Department of Defense has been wildly inconsistent on several key points related to the circumstances surrounding the deaths. The DOD’s actions are highly suspicious and suggestive of a cover up.
Regardless of whether murder was committed, Seton Hall’s work and diligence on this case has been extraordinary. Because of their efforts, we are far more likely to discover what actually happened to the three inmates than would otherwise be the case. It is inspiring, in a sense. How often do we see or hear things that trouble us just to then go about our lives wondering why nobody does anything about it? Seton Hall reminds us that complacency and surrender are not our only options- and certainly not our best option.
Take a few minutes and read what they have found. This issue isn’t getting the attention it merits.
Our soldiers in general perform admirably and faithfully, and we shouldn’t let isolated examples of wrongdoing undermine our confidence in or support of the military as a whole. That said, there are extremely disturbing allegations of murder at Guantanamo Bay, Cuba, and substantial evidence that suggests a widespread cover-up effort by military leaders at Guantanamo Bay, as detailed in this in-depth piece by Harpers Magazine. A shorter summary of the Harpers article is here.
One of this nation’s greatest virtues is its willingness to shine a light in dark places that make us uncomfortable, because we find that while the brightest lights may burn from time to time, they also illuminate the best path forward. A much brighter light needs to be shone on these allegations- not just to ensure justice will be done in this case, but to ensure it is done in future cases as well.
As one journalist put it:
Military lawyers are not only concerned about how the enemy will treat our troops. They are also concerned about how our troops will treat the enemy—and not just because that treatment might be morally offensive and/or strategically unwise. As one of my colleagues—himself a JAG officer—put it, the Geneva Conventions are so honored by military lawyers because they protect our own troops’ humanity. The conventions prevent higher-ups from ordering subordinates to engage in repugnant acts, and they offer soldiers on the ground some basis for differentiating legal acts of killing and destruction from criminal acts of killing and destruction.
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