I thought I’d respond to a blog entry by MikeT, but I figured the reply deserved a post of its own. I appreciate his thoughtful critique of my viewpoint dealing with the question, “How should we treat detained aliens accused of being enemy combatants?” I know it’s a contentious issue, with people adamant on both sides. If you missed my earlier posts on the matter, you can find them here and here and here.
As a beginning point on this issue, one first must ask himself : “To whom does the Constitution apply?” The Constitution’s Preamble answers this question:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
So at the outset, we’re told that this is a document written by Americans, for Americans.
To quote Mike: That said, I think you will find nothing in the Bill of Rights that supports the notion that there are separate basic rights between citizens and non-citizens when it comes to being detained and brought before a court, civilian or military.
I disagree. Article 1 Section 8 Clauses 10 and 11 of the Constitution tell us that Congress has the power:
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
It goes without saying that “Piracies and Felonies committed on the high Seas” include acts of aliens. Congress is empowered to define and punish these, as well as “offenses against the Law of Nations,” which references absolute moral law, or the laws that aid relations between nations, or as Founder James Wilson put it, “The law of nature.” If Congress can “make Rules concerning Captures on Land and Water,” this necessarily includes rules regarding treatment of aliens. In exercising these mandates, Congress has created legislation designating power to the president and U.S. military to create military tribunals for the trying and sentencing of enemies of the United States.
Amendment Five recognizes the right to indictment by a grand jury, but abrogates that right in certain situations. What are the exceptions? . . .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. . .
If our own military isn’t entitled to this constitutional protection in wartime or public danger, how much more so is this true for aliens?
Amendment Six: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. . .
It’s an imaginative stretch suggesting an application of this Amendment to aliens who have never stepped foot on American soil.
As for aliens within U.S. borders, the Constitution doesn’t specifically address their treatment.
The answer to these problems lies outside the Constitution’s text, and is found in the historically enacted policies of the United States and the Founders’ intentions. So let’s look at those.
George Washington approved the military trials and executions of British spies and saboteurs during the Revolution. Hamilton served as Washington’s military secretary, and aided in bringing about these executions. So from the beginning, we see due process for foreign enemy combatants, but not in the same form as that received by Americans. I’m aware of no later repentance of these acts by either man—even after the Constitution’s ratification.
An 1806 congressional act signed into law by Thomas Jefferson imposed capital punishment on alien spies through courts martial. We have due process protected, yet a distinction between citizens and aliens.
FDR utilized a military tribunal against German spies captured in American territory, resulting in the execution of most of the captives. Again, a distinction between citizens and non-citizens.
In post-WWII Nuremberg, a war crimes tribunal tried and sentenced Nazis who had aided and abetted Hitler’s grotesque schemes. Americans played pivotal roles in these trials, and at no point were the criminals treated like U.S. citizens, or tried in a civil-court atmosphere.
The reality is that making distinctions between citizens and aliens in the enactment of due process has constitutional provision, historical precedent harkening back to the founding era, and past Supreme Court agreement. The current SCOTUS ruling on this issue breaks with all of the above. As I have said before, it is a recent innovation in American jurisprudence.
A slight digression: isn't it interesting how SCOTUS has zero qualms about breaking precedent, when leftist activism comprises the agenda? This is true even in cases like the one at hand, in which the Supreme Court has a consistent past record of supporting the policies in place.
I’d like to address this, as well: Part of this is because the very notion of an "American citizen" didn't even exist when the Bill of Rights was enacted.
I disagree. It was understood at the time that people were citizens of their respective states, and citizens of the larger entity, the united States of America. The states were sovereign, to a degree, but they also were subject to federal rules that superseded that sovereignty, for as long as they remained members of the union. Just as authority was divided, citizenship pertained to the member states, and to the confederation as a whole.
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