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To Whom Does the Bill of Rights Apply?

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