Even the Nazis, You Say?
Whatever your position on the recent Guantanamo ruling, I think we can all agree that Senator Graham’s position is based on faulty logic:
“The American people are going to wake up tomorrow and be shocked to hear that a member of Al Qaeda has the same constitutional rights as an American citizen,” said Graham.
“[Even] the Nazis never had that right.”
Even the Nazis? My god, the well-liked and respected Nazis? I can’t believe we would treat somebody better than we treated the Nazis. I just assumed we would treat every foreigner worse than the Nazis…
By the way, I assume he’s obliquely referring to Ex parte Quirin.
June 16th, 2008 at 3:12 pm
I think that’s a pretty charitable assumption.
Also, technically, no noncitizen has the same constitutional rights as a citizen, right? At least as regards voting and maybe deportation.
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June 16th, 2008 at 3:50 pm
Non-citizens have a different block of rights under the Constitution than citizens.
Under the 14th Amendment, the government generally cannot constitutional discriminate against non-citizens as a class except for a few limited exceptions: being a police officer, being a teacher, voting, being a parole officer… and one more that I’m blanking on (they’re all linked, though admitted somewhat tenuously, to participation in government and the advancement of government).
Generally, the bulk of the Constitution does apply to non-citizens, though there are some exceptions. The 4th Amendment’s prohibition on unreasonable search search and seizure, for example, only applies to non-citizens if they have a “substantial and voluntary connection the US.” Living in or visiting the US (even for a short time) would be enough to satisfy this requirement. If you’re a foreigner living abroad, or a foreign forceably brought to the US by law enforcement, the standard Constitutional rules would not apply to you. This comes out of a case called United States v. Verdugo-Urquidez about a warrantless search in a Mexican drug lord’s house.
There was another case that I can’t find right now (I thought it was called Chavez, but apparently not) where a confession was tortured out of a foreigner while they were abroad. The Court held that until the confession is used in some American legal proceeding, there was no violation of Miranda rights. The court opined that there might be some Due Process right not to be tortured, but it wasn’t directly addressed.
Basically, if you’re in the US, the bulk of the Constitution applies to you. If you’re a foreigner abroad and you didn’t enter the US voluntarily, the rules do not much apply to you. An older case, Eisentrager, said that Due Process did not apply to Germans held in military camps in Germany. This rule sounds like it might be changing based on the recent spate of decisions on the war on terror, but I haven’t looked at them too closely and don’t know enough to offer any real insight.
Ok, I’m going to stop thinking about this now.
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June 17th, 2008 at 1:34 am
Thank you for that answer, which took a nonzero amount of work. I should have known better than to ask you an offhand complex legal question. Or maybe I should just pay you. Quick, what’s notable about Georgia tort law?
Yeah, I’m sure all of this was reviewed in great detail by certain Bush Justice Department employees.
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June 17th, 2008 at 2:14 am
It’s Napoleonic?
Wouldn’t it be awesome if it were?
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June 17th, 2008 at 2:17 am
By the way, I’m a huge fan of the word “nonzero.”
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June 17th, 2008 at 10:53 am
you’d probably enjoy this conference i’m at, then.
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June 17th, 2008 at 1:48 pm
Graham’s comment is inaccurate, because the military tribunals are still in effect. This ruling doesn’t change that. It only affects the special type of trial that the Bush administration authorized, being described by some as a ‘kangaroo court’, designed by the administration against the wishes of the military and overriding Congress, where the defendant cannot see the evidence against him. The detainees can still be held indefinitely and can still be court martialled under this ruling, which is very similar, if not exactly like what we did to the Nazis that Lindsey seems to hold so dear.
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