promoting the unwanted, redheaded stepchild that is individual liberty

The rights of terrorists Part I

In liberty and rights on April 19, 2010 at 3:04 am

It’s no surprise Attorney General Eric Holder and the Obama administration are caving to pressure by leading Republicans to try terror suspects in military tribunals. What is surprising is the lack of outrage from the American people who actually appear in favor of such kangaroo courts.

Probably because most Americans are under the delusion that the U.S. Constitution, Bill of Rights and Miranda Warning only apply to U.S. citizens. They need to do their homework.

The entire case for military tribunals rests on the assumption that A) terrorists are not American citizens and B) they are therefore not entitled to the “rights of the accused.” But the notion that only citizens are privilege to the first 10 amendments¬†of the U.S. Constitution is completely unfounded.

Nowhere in the Bill of Rights do the words “American” or “citizen” appear. Instead, the language simply refers to persons and the accused as in “The accused shall enjoy the right to a speedy and public trial.”

Likewise the 14th amendment, which made the Bill of Rights applicable to state law, makes a strong distinction between U.S. citizens and persons in general:

“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.”

So the 14th amendment prohibits states from abridging the privileges or immunities of citizens while at the same time prohibiting them from depriving any person of due process and equal protection under the law.

See The rights of terrorists Part II

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  1. The issue isn’t that people believe the Constitution applies only to Americans. It’s that we don’t believe terrorism is a criminal act, but an act of war. Considering terrorism as a military act combined with the fact the enemy does not wear a uniform as required by the Geneva Conventions changes everything. The laws, punishments, etc. are then entirely different than in a “mere” criminal act. The terrorists are not signatories to the Geneva Conventions, but even were they, the acts they commit subject still them to summary execution.

    If they want to play war, they should understand the consequences. They intentionally murder civilians, they refuse to wear uniforms, they ignore the accepted “rules” for war. Therefore they forfeit even the right to be treated as soldiers. The fact we’re willing to go even that far and grant them tribunals is testament to the American sense of fairness and patience. But I believe treating them as common criminals is taking their supposed “rights” too far. Through their actions they abandon and claim to such rights. Treating terrorism as though it were on the same page as jaywalking, speeding, or assault is silly.

    Now are the rules different for an American citizen? That’s a tougher call. Should Timothy McVeigh have been tried by a tribunal? Was his an act of terrorism or a criminal act? Should his citizenship have granted him some sort of immunity from being treated as a military combatant in violation of the Geneva Conventions and guaranteed him a right to trial in civilian court? It’s these gray areas that still need to be addressed. I’d say we need to err on the side of making things as bad as possible for terrorists, but I’m sure I’d be in the minority on that. I believe when we make terrorists out to be criminals, we actually invite more terrorism, as they know that even if caught, they’ll be comfortable in our prison system for years, and get to use our courts to push their propaganda. I don’t claim to know the answer to how to protect the rights of ordinary citizens without damaging our right to fight terror as a military issue. But I believe it needs to be done. Khalid Sheikh Mohammad should not have the same rights as OJ Simpson. He should be more on par with the Nazi saboteurs caught on American soil during WWII, who were in fact tried by tribunal and executed by Roosevelt.

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