The fifth amendment uses the word "PERSON" not citizen. So in some sense this is just a continuation of the same - what is applicable to a "military age male" in Afghanistan is now applicable to a American Joe Q Public.
This is an excellent wake-up call - do not gut American values to (notionally) protect the American People.
"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;"
Our declaration of independence says that "We hold these truths to be self-evident, that all men are created equal" -- ALL men. Not just American men. I think those two, taken together, imply that the founders would have meant for the 5th amendment to cover American men, Englishmen, Frenchmen, and natives of foreign lands which they had not heard of yet.
What do you think the clause
except in cases arising in the land or naval forces
means?
"according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."
That specifically states that not all men are equal.
If you want to get an idea of what protections the founders thought should apply to non-Americans outside U.S. soil, you need look no further than see how they handled the American Indians. Hint: they didn't bring Indian chiefs to Philadelphia for trials in American courts.
A) The canonical remedy for unlawful imprisonment is the writ of habeas corpus [1]. When a court issues "the Great Writ," it orders the prisoner's jailer(s) to bring the prisoner to court and, by implication, to release the prisoner if the court so directs.
B) Article 1 of the Constitution expressly empowers Congress to suspend habeas corpus --- in other words, to strip from courts the authority to order the release of prisoners --- "when in Cases of Rebellion or Invasion the public Safety may require it." [2] Nothing in the Fifth Amendment alters this congressional power of suspension.
C) It might be argued that in enacting the Patriot Act, Congress partially suspended habeas corpus in response to the "Invasion" we call 9/11.
D) The courts try to interpret the various parts of the Constitution to be in harmony with one another if at all possible.
E) So, "properly" interpreted, the Fifth Amendment might not stand in the way of imprisonment without trial in a case covered by a congressional suspension of habeas corpus. (The breadth of this possibility troubles me, incidentally; also, I'm far from a constitutional scholar.)
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2. As to whether the Constitution prohibits killing an enemy combatant in wartime without individualized due process in each case: That'd be a really, really tough sell, not least because if that principle had been followed, the U.S. would not long have survived as an independent state.
[1] http://en.wikipedia.org/wiki/Habeas_corpus
[2] U.S. Const., art. 1, sec. 9, http://www.usconstitution.net/xconst_A1Sec9.html
Even if someone did argue for that, which you didn't do, they would argue that 9/11 was an "invasion", not an invasion. See how that works?
Also, the perpetrators were from Saudi Arabia mostly, yet Iraq was attacked, talking about how he's an evil man which had fuck all to do with him attacking the US. That's kinda where your whole post falls down like a house of cards. Remember Powell before the UN, with a dry throat and sweating a lot, showing his slides about what might be mobile WMD labs? Heh. No, to anyone not accomplice to it, or suffering from Stockholm Syndrome, this is rather clear. And it's old. Americans have been warning Americans for a century now. The military industrial complex doesn't do this since lately.
As to whether the Constitution prohibits killing an enemy combatant in wartime without individualized due process in each case: That'd be a really, really tough sell
If you simply define "military age males" who died in drone attacks as those, then they're not really enemy combatants, they're "enemy combatants", which raises the same issue as the "invasion" stuff does. Also, simply attacking people and calling it war doesn't make it "wartime". Just saying "it's war!" doesnt make it war.
Um, no, I don't.
> Also, the perpetrators were from Saudi Arabia mostly, yet Iraq was attacked ....
I must be missing something here, like what that has to do with the current constitutional discussion.
> Remember Powell before the UN, with a dry throat and sweating a lot ....
That's not the way I remember Powell's UN WMD presentation.
I don't know where people get the idea that these rights extend to everyone, or that there may be more rights than specifically listed in the bill of rights.
You also have to keep in mind that debates about Constitutionality arise over politically unpopular topics. It's a way for people with minority viewpoints to say: "well, whether you think this is good or bad, it is inconsistent with this larger scheme we all agreed to."
If you held a vote and asked people whether they thought people accused of terrorism, especially abroad, should have rights, you'd lose. I remember in college being the lone dissenting voice in a discussion of the merits of turning the entire Middle East into a glass parking lot. Ordinary Americans believe very deeply in the sovereign right of the American government to kill foreigners who do anything contrary to American interests.
Hence the resort to legalism. You can't convince Americans that it's good for suspected terrorists to be given trials, etc, so the best you can hope to do is convince them that they, collectively, bargained away the ability to hold suspected terrorists without trial.
The other problem is that even if it was a contract, we seem to ignore it, because we pass the laws described in the article. So it's not a very effective system.
As for the laws described in the article--they are not the product of Congress "ignoring the Constitution." The appearance of "ignoring the Constitution" is itself the product of certain civil libertarians believing the Constitution says more than it does, or focusing on what they wished the Constitution said rather than what it does say.
And what characteristics are those?
Yes, there is a place for a discussion of ethics outside of the current legal framework, and if the Constitution is found to be lacking in that area, then it should be amended. Until that happens, our government is legally bound to abide by the Constitution as it is written, and to judge whether or not that is happening, the document must be interpreted. One important aspect to interpretation of a document is to understand the circumstances under which it was written. To do that with a 200+ year old document requires a little knowledge of history.
The framers of the Constitution did not achieve perfection, but at least the idea of the "rule of law" does give us a relatively consistent and stable society in which to live. The disadvantage is that written law is static and cannot quickly adjust to changing circumstances. Ideally, we would have an enlightened leader who knew the right thing to do in every circumstance, and would govern with perfect justice. If we could be assured of that kind of government, we wouldn't need to worry about interpreting documents.
This is why discussions turn legalistic, because people dissagree about what's good and what's bad, so they instead fight over what is legal and what is illegal.
Terrorism is a statistical outlier. Abuse of power by the State is not.
"Security protocols" to prevent misuse, huh? Why would you think they'd be concerned with something like that?
What do you think is the idea behind NSA's massive spy center in Utah? "Hey guys, let's capture all traffic on the Internet, and then make damn sure we'll never do anything with it that might compromise someone's privacy, ever!"
> robust court supervision of the use of the resulting evidence
As robust as the supervision on mortgages in the past few years, perhaps?
Case in point: With all those hundreds of thousands of mortgages the bank bought, it simply stopped filing basic paperwork – even the stuff required by law, like keeping chains of title. A blizzard of subsequent lawsuits from pissed-off localities reveals that the bank used this systematic scam to avoid paying local fees. Last year, a single county – Dallas County in Texas – sued Bank of America for ducking fees since 1997. "Our research shows it could be more than $100 million," Craig Watkins, the county's district attorney, told reporters. Think of that next time your county leaves a road unpaved, or is forced to raise property taxes to keep the schools open.
But the lack of paperwork also presented a problem for the bank: When it needed to foreclose on someone, it had no evidence to take to court. So Bank of America unleashed a practice called robo-signing, which essentially involved drawing up fake documents for court procedures. Two years ago, a Bank of America robo-signer named Renee Hertzler gave a deposition in which she admitted not only to creating as many as 8,000 legal affidavits a month, but also to signing documents with a fake title.
http://www.rollingstone.com/politics/news/bank-of-america-to...
That's only natural. You have to determine what the amendment really means before you can decide whether or not it's a good idea.
Madison didn't want to include a bill of rights at all. He viewed the US Constitution as a document enumerating what the federal government can do, which is the most restrictive interpretation, and thus things like prohibitions on speech were obviously outside the powers of the federal government.
He felt that by including the Bill of Rights the meaning of the entire document was changed and people would argue it allows the government to do anything that isn't prohibited.
I think history has proved him correct in spades.
There: fixed that for you. (And for the lurkers who might get the idea you were serious).
Now we're engaged in hostilities not declared as a war and without clearly defined victory conditions. If enemies in that conflict are treated as POWs, their detention is indefinite. I'm pretty sure the Constitution's authors did not intend anything of the sort.
More generally, at the time of the founding it was taken for granted that the Constitution only applied to American soil. Most of the extra-territorial application of the Constitution has been the result of subsequent legal development.
I'm not clear on how "No person..." selects some subset of people with whom such government prohibitions apply.
>at the time of the founding it was taken for granted that the Constitution only applied to American soil.
The Constitution makes no mention of geography. Instead it is entirely a collection of MAYs, SHALLs, and SHALL NOTs directed at the government.
>Most of the extra-territorial application of the Constitution...
...is predicated on notions of geographical distinction wholly absent from the Constitution.
Luckily, the Constitution is not a disembodied bit of text. We have copious context to use to evaluate the significance of the lack of geographical distinctions in the Constitution. The English legal tradition, which the Constitution is a product of, is highly territorial. English law applied to Englishmen in England. Thus, it is reasonable to conclude that American law, including the Constitution, was intended to apply to Americans in America.
Scalia's dissent in Boumediene has a good discussion of the application of Constitutional rights to non-citizens: http://www.law.cornell.edu/supct/html/06-1195.ZD1.html. I'd skip to Section II to get past the political rant.
If the government feels it can prosecute you for crimes committed outside then it is limited by the same laws.
You're kidding, right? The Constitution says, right at the start, that it is for the United States of America.
You're looking at it wrong. It's that the text does not allow for a certain class to be excluded, which is what the Obama Administration is doing with respect to "military-age males."
No, it wasn't. The Constitution explicitly says that it's a Constitution for the United States of America.
The 5th amendment says: "...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..."
You might be able to fly a drone through the "or public danger" loophole.
Also, the 5th amendment calls for "due process" but that doesn't mean a trial. Due process is a fluid concept that depends on the circumstances. Al Awalki might have been entitled to due process, but what process is "due" in a situation where someone leaves the county to take up arms against it? It's not obvious he didn't get all the process he was due.
The same thing with natural rights. You might think it's important not to kill people, no matter if they're American or not. That's a value judgment. But to assert they have a "natural right" not to be killed--that's a factual assertion. If you do kill them and do an autopsy, you won't find any "natural right" in there.