Somehow the post I just wrote disappeared, so here I go again sigh
Sorry to come into the debate years late, but I just stumbled across the US constitution.
Provided one acknowledges the term “unlawful combatant” and accepts that as such people cannot benefit from the rights given to prisoners of war under the geneva conventions, I wonder why they are not covered by the 5th amendment?
Let’s take a look at it:
Basically this says “No person […] be deprived of […] liberty […] without due process of law;”
Some key characteristics of “due process of law” are given on this website http://www.usconstitution.net/consttop_duep.html and I think it isn’t debateable that even “unlawful combatants” are persons.
The immediate threat in Afghanistan is gone, as the US troops have left the field - therefore provisions of war that might have prevented a trial do not count anymore. Isn’t it time to grant these persons their due process of law?
If the answer is “no”, then perhaps the 5th amendment needs to be reworded to say "No person - except for unlawful combatants - " or somesuch, at least.
Because a pseudo-political businessman who is so morally bankrupt that he’ll go out of his way to avoid the laws of the land for his own party political ends, and in doing so detain people without charge for over a year, doesn’t care enough about the principles of democracy and the Rule of Law. All that matters is reelection.
And no one in the US seems to be protesting it – which is . . . surprising.
Not until they can be give serious screen time – along with the visit to Queen Liz, the Thanksgiving visit to an Iraqi air base, the flight deck ‘Mission Accomplished’, etc – in the run up to November, they’re visual pawns in a bigger game. At this point, they’re part of the re-election backdrop, kind of like extras in the big Ben Hur climax scenes.
“Cases arising in the land or naval forces”, maybe? That’s the whole justification for the military tribunals, isn’t it? And the whole seperate UCJ military code?
Laws are written for ordinary people, not people in power, to follow. Why do you think there are so freaking many of them? If they were for the leaders, there would be only one or two.
Well, the simple answer is that the 5th Amendment does not apply to non-citizens arrested on non-United State’s soil. That distinction is, in my view, completely valid, people who are non-citizens who don’t live in the United States, need not to be afforded all the protections of our Constitution. And that accounts for a vast majority of the enemy combantants being held.
The more intriguing question is how does the Constitution apply, if at all, to a United States citizen arrested in a foreign country (an "enemy combantant by the name of Hamdi) or a United States citizen arrested in the United States (an “enemy combantant” by the name of Padilla.) The Supreme Court of the United States will be hearing both of these cases coming up this year, and then you will hopefully have an answer.
I understand that this might be a common view, but the 5th amendment doesn’t state that. It doesn’t say “No US-citizen”, it says “No person” and even non-citizens are persons. In my layman’s point of view, the constitution needs a serious re-write or alternatively the government needs to heed what is written in the constitution.
Consider this - if the constitution did not mean “no person” by stating “no person”, then this would grant the US government the “right” to do whatever they please with “illegal aliens” and tourists. A scary thought indeed.