To Whom Does the Bill of Rights Apply?

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My
article on Torture
has also prompted some dissent – mostly
contesting my statement that the Bill of Rights applies equally
to American citizens and non-citizens. Here are a couple of examples:

The Preamble
to the Constitution established an implication of American citizenship
(that is, "We the people of the United States of America…") 
The amendments, that we now call the Bill of Rights, were amendments
to that Constitution.

And:

That Constitution
was written by and for the Citizens of the United States of America.
It does not apply to Citizens or Subjects of another Country.
So, what is done to terrorists by us or to others outside of the
United States, as long as they are NOT citizens of the United
States is NOT covered under our Constitution. Ya gotta get your
facts straight or you’ll sound like one of those fuzzy-headed
Left Wing Communist and Socialist Retal Cavity’s.

Retal
cavity’s?

I
made the mistake in my article of focusing on the fact that the
only references to "citizens" in the
Constitution
have nothing to do with the rights of the people.
That’s true but it’s a roundabout way of making the case.

The
important point is that the Constitution doesn’t apply to Americans,
it doesn’t apply to citizens, it doesn’t even apply to "people."
It applies to the federal government. The body of the Constitution
tells the federal government what it is allowed to do, and in some
places it explains how to do it (election procedures and such).
The Bill of Rights tells the federal government what it is not
allowed to do . . .

  1. Make no
    law abridging freedom of speech, press, religion, or assembly,
  2. Do not
    infringe on the right to keep and bear arms.
  3. Don’t quarter
    soldiers in peacetime.
  4. Don’t conduct
    unreasonable searches and seizures.
  5. Don’t commit
    double jeopardy or force people to testify against themselves.
  6. Don’t deny
    an accused a speedy trial.
  7. Don’t deny
    an accused a trial by jury.
  8. Do not
    impose excessive bail.
  9. Just because
    certain rights of the people aren’t mentioned in this Constitution
    doesn’t mean you’re allowed to usurp them.
  10. Don’t exercise
    any power not authorized in this Constitution.

Where
exceptions were meant to apply, they are specifically stated. And
there are no exceptions stated for any type of guns, for any type
of speech, for any specific crimes, or for crimes where non-citizens
are involved.

My
overriding point in the article was that, until a suspected "terrorist"
gets a fair and impartial trial, you don’t know whether he is
a terrorist. So even if you think non-citizen terrorists have no
rights, how do you even know for sure that they are terrorists
– or that they are non-citizens – until every facet
of due process has been applied.

The
Bush administration is trying to establish procedures whereby
it can lock up a suspect for life
without giving him
access to an attorney, without any judicial process, without even
letting him tell his family where he is. If this should apply only
to non-citizens, consider this scenario:

Some
men in flak jackets intercept you on your way home from work one
day. They spirit you away to an Air Force base, where you’re put
on a plane and taken to Egypt. You are tortured daily for weeks,
until you confess to being a Syrian terrorist and you give your
oppressors information about terrorist cells – information
you invent in order to get them to stop torturing you.

When
you ask them why they think you’re a foreign terrorist, they tell
you that a
neighbor earned a reward for informing on you
. When you ask
them when you’ll be released, they tell you that you’ll probably
be confined (without trial) for the rest of your life, because the
War on Terrorism will never end and terrorists are too dangerous
to let loose.

Meanwhile,
back in the United States, human rights groups complain that the
government is imprisoning and torturing American citizens in violation
of the Bill of Rights. But the President tells the press and public
not to worry – that only non-Americans are being imprisoned
and only terrorists with vital information are being tortured.

You
can’t prove that you’re neither a foreigner nor a terrorist, because
there has been no impartial judicial hearing in which you have the
benefit of an attorney, the right to confront your accusers and
cross-examine them, and the judgment of a jury of your peers.

But
then, you shouldn’t have those rights because law-enforcement agencies
have information that you’re a foreign terrorist.

But
don’t worry; this isn’t really happening. All those people confined
in Guantanamo, in Iraq, in Afghanistan, and in other countries to
which the U.S. government has transferred people? They’re certainly
guilty and they’re certainly foreign – or our government would
never have put them in prisons.

So
go back to sleep. Your government will protect you.

January
19, 2005

Harry Browne [send
him mail
], the author of Why
Government Doesn’t Work

and many other books, was the Libertarian presidential candidate
in 1996 and 2000. See his website.

Harry
Browne Archives

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