"It is indisputable...that the Constitution [protects both] citizens and foreigners."

Bonnie Kristian
Feb 2, 2010 at 8:53 PM

Many who favor the use of torture -- er, enhanced interrogation techniques -- on those suspected of terrorism attempt to bolster their arguments by claiming that it's ok because, universal conceptions of human rights be damned, the Constitution only applies to U.S. citizens.

To put it simply, they're very, very wrong.  Glenn Greenwald explains this well in a new piece:

[In a 2009 Supreme Court decision,] none of the 9 Justices -- and, indeed, not even the Bush administration -- argued that the Constitution applies only to American citizens.  That is such an inane, false, discredited proposition that no responsible person would ever make that claim....It is indisputable, well-settled Constitutional law that the Constitution restricts the actions of the Government with respect to both American citizens and foreigners.  It's not even within the realm of mainstream legal debate to deny that.

However, despite the recency of this example, this is hardly a new idea made up by a modern, activist SCOTUS.  Greenwald notes that the exact same opinion was part of SC jurisprudence in the late 1800s.  And even a cursory examination of the text of the Constitution itself -- which clearly distinguishes between "persons" (meaning everyone, regardless of citizenship) and "citizens" -- shows that it was never the intention of the founders to apply the guarantees of the Constition only to those boasting American citizenship.

Greenwald continues his analysis to point out that arguing for an exclusive application to citizens of rights the Constitution gives to "persons" violates even basic common sense:

If a foreign national is arrested and accused by the U.S. Government of committing a crime, does anyone believe they can be sentenced to prison without a jury trial, denied the right to face their accusers, have their property seized without due process, be subjected to cruel and unusual punishment, and be denied access to counsel?  ...Does anyone believe that [would be ok]?  Would it be Constitutionally permissible to own foreigners as slaves on the ground that the protections of the Constitution -- including the Thirteenth Amendment -- apply only to Americans, not foreigners?

Read the rest of the article here (and learn the arguments in it -- in my experience, at least, they'll come in handy).

I always enjoy your blogs, Bonnie!

Jihan Huq's picture

Thank you :)  I enjoy yours too -- especially since you consistently put in pictures.  You're better about incorporating graphic elements than I ever thought of being.

Bonnie Kristian's picture

Great post and article. I'm so sick of hearing people, like my cousin, who say "Oh but they're foreigners! We can do whatever the hell we want to them!" Really?

Brian Beyer's picture

I just wish everyone else understood this small point.

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This is going on my facebook!

George Edwards's picture

Bonnie. I like your post and agree the citizen-noncitizen distinction is unhelpful, but IMHO its important not to gloss over some important distinctions.  For example, foreigners outside the US may only be entitled to certain constitutional protections if within U.S. jurisdiction or control.  And, per our immigration laws (which have been upheld by SCOTUS) certain rights, e.g., Sixth Amendment, may be significantly curtailed with respect to aliens.   And, its still the case that with regard to armed conflict the U.S. must accord prisoners rights they may (or may not) have under the Geneva Conventions, part of our law via the Supremacy Clause.   Thus, the kinds of rights foreigners inside or outside the U.S. may enjoy vary widely from case to case.

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Nicole, thanks for your comment.  I agree with you that there is still some room for debate, as Greenwald notes in his original article:

It's certainly true that, even after Boumediene, there is a viable debate over whether so-called alien "enemy combatants" held outside of the U.S. are entitled to the full panoply of Constitutional protections (of course, that debate ignores the unanswerable question:  how do you know someone is an "enemy combatant" -- let alone a "Terrorist" -- if they don't first have a trial?).  There are also instances (such as deportation hearings) where the due process rights to which foreign nationals are entitled are less stringent than standard rights guaranteed in criminal trials (becuase foreign nationals have no Constitutional right to be admitted entrance to the U.S.).

Like you, he mentions considerations of what to do with nationals held outside of the US and with immigration hearings.  However, as far as armed conflict is concerned, I'd note that because what we have isn't a war in the legal sense of the word, to apply the rules of international law regarding POWs seems a bit of a stretch. 

For that reason, I'd say we should err on the side of caution (more rights rather than less), and treat those prisoners held in places like Gitmo as if they were on American soil.  After all, if our gov't owns/rents/otherwise controls the land, for all intents and purposes, I'm inclined to say that it's pretty much the U.S.

Bonnie Kristian's picture

Be very careful.  If an illegal alien is charged with a crime, they do not have the same rights as a U.S. citizen.  Ask the immigration lawyers at Catholic Charities.

Lawyer from Texas

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Read this: http://www.nytimes.com/2005/08/10/nyregion/10civil.html

it illistrates a prime example of how the US constitution is selectively applied.

I wont even mention GTMO, Extroadinary Rendition, Suspension of Habeus Corpus, Illegal Combatants or Torture.

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The people shall choose those who will enact and enforce the laws of the land. The role of political self-government is to assure that those who administer the state are accountable to those whom they represent.

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