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10.03.2006

The Constitution Applies To Americans, Not Terrorists

Sad that Americans have become so ignorant of basic civics that Andy McCarthy needs to tell us this:

First, Congress cannot “suspend” habeas corpus by denying it to people who have no right to it in the first place. The right against suspension of habeas corpus is found in the Constitution (art. I, 9). Constitutional rights belong only to Americans — that is, according to the Supreme Court, U.S. citizens and those aliens who, by lawfully weaving themselves into the fabric of our society, have become part of our national community (which is to say, lawful permanent resident aliens). To the contrary, aliens with no immigration status who are captured and held outside the territorial jurisdiction of the United States, and whose only connection to our country is to wage a barbaric war against it, do not have any rights, much less “basic rights,” under our Constitution.

Indeed, even when the Supreme Court, in its radical 2004 Rasul case, opened the courthouse doors to enemy fighters in wartime for the first time in American history, it relied not on the Constitution but on the federal habeas corpus statute. So put aside that Rasul was an exercise in judicial legerdemain whose holding depended on a distortion of both that statute and the long-established limitations on the Court’s own jurisdiction (which does not extend outside sovereign U.S. territory to places like Guantanamo Bay, Cuba). Even in its willful determination to reach a result that rewarded al Qaeda’s lawfare, the Court declined to rule that alien combatants have fundamental habeas rights. Instead, they have only what Congress chooses to give them — which Congress can change at any time.

But wait. Isn’t habeas corpus necessary so that the terrorists can press the Geneva Convention rights with which the Court most recently vested them in its 2006 Hamdan case? Wrong again.

To begin with, although its reasoning was murky, the Hamdan majority seems technically to have held that Geneva’s Common Article 3 applied to military commissions because of a congressional statute, the Uniform Code of Military Justice. Again, if a right is rooted in a statute, not in the Constitution, Congress is at liberty to withdraw or alter the right simply by enacting a new statute. Such a right is not in any sense “basic.”

But don’t some human-rights activists contend the Hamdan ruling means Common Article 3 applies not just because of a statute but because of its own force as part of a treaty that the United States has ratified? Well, yes, they do make that claim — and (as I recently argued here) they have gotten plenty of help from the recent debate prompted by Senators John McCain, Lindsey Graham, and others who insisted Hamdan meant Common Article 3 controls interrogation practices.

Even with all of that, though, it remains a settled principle that treaties are compacts between sovereign nations, not fonts of individual rights. Alleged violations are thus grist for diplomacy, not litigation. Treaties are not judicially enforceable by individuals absent an express statement to the contrary in the treaty’s text. By contrast, Geneva's express statements indicate that no judicial intervention was contemplated.


I'm constantly struck by how people who claim to be so concerned with their civil liberties are willing to cede them entirely to unaccountable bureaucrats in Brussels, Geneva, or at the UN.

When WG and I honeymooned in Ireland, I was amazed at how the fiercely-independent Irish had swallowed every EU regulation happily and begged for more. As a result, Ireland ought to be renamed Street Sign Land, so evident is the Brussels-mandated nanny state in every nook and cranny of Irish life.

The only right terrorists have under our Constitution is the right to a swift and sure journey to hell thanks to the best efforts of the American military. Too bad the Left in this country doesn't have an interest in seeing that this right is honored, huh?

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