How would it be Constitutional to hold Guantanamo Bay detainees in the United States without trial?
January 23, 2010 8:57 AM   Subscribe

How would it be Constitutional to hold Guantanamo Bay detainees in the United States without trial?

The Obama administration plans to move Guantanamo Bay detainees to Illinois and hold 47 detainees indefinitely without trial. How would this be Constitutional? The Fifth Amendment says, "No person shall... be deprived of life, liberty, or property, without due process of law" (emphasis added). Is there a ruling that says a "person" has to be a US citizen? If there's a law that says the detainees don't have rights, wouldn't such a law violate the Fifth Amendment?
posted by kirkaracha to Law & Government (28 answers total) 2 users marked this as a favorite
 
It's not constitutional. It's not in the US.
posted by cmoj at 9:07 AM on January 23, 2010


Or, US executive jurisdiction, I should say.
posted by cmoj at 9:08 AM on January 23, 2010


My guess is, in the end, they probably can't. I'm no legal scholar, but it seems that regardless of what the administration says at this point, bringing them into the continental US instead of holding them in a military prison on foreign soil probably opens up all kinds of legal doors to enforcing due process.
posted by TravellingDen at 9:08 AM on January 23, 2010


If you're not a US Citizen you don't have constitutional rights. You have human rights, but not constitutional rights. Really, it's that simple.
posted by crapples at 9:10 AM on January 23, 2010 [1 favorite]


I wouldn't be surprised if the Supreme Court ends up ruling that it's not constitutional, actually. That'd be a silver lining to a really abhorrent policy--a bright line saying that the government can't do this.
posted by EarBucket at 9:10 AM on January 23, 2010


If you're not a US Citizen you don't have constitutional rights. You have human rights, but not constitutional rights. Really, it's that simple.

Wrong. Just wrong.

The difference, as I understand it, is their status as "enemy combatants." I believe they have the right to contest their detention before a military commission, and that's about it.
posted by melissasaurus at 9:13 AM on January 23, 2010 [1 favorite]


Also, there are a number of good NPR articles/stories re the Gitmo detainees.
posted by melissasaurus at 9:16 AM on January 23, 2010


If you're not a US Citizen you don't have constitutional rights. You have human rights, but not constitutional rights. Really, it's that simple.

This simply isn't true. The Supreme Court's held at least since Wong Wing v. United States in 1896 that due process rights apply to aliens in the US. The government can deport you, but it can't lock you up without charging you.

Now, the question of whether the military can detain someone's a little stickier, but that applies to citizens and non-citizens alike.
posted by EarBucket at 9:17 AM on January 23, 2010 [3 favorites]


If you're not a US Citizen you don't have constitutional rights. You have human rights, but not constitutional rights. Really, it's that simple.

It's that simply wrong. Absolutely everyone in the United States has constitutional protections. This includes, in fact, people here illegally. Can they be deported? Sure. But "They have human rights but not constitutional rights" is a flatly untrue statement. For example, in Yick Wo v Hopkins the Supreme Court very explicitly ruled that the 14th Amendment applied to Chinese business owners who were not US citizens.
posted by Tomorrowful at 9:18 AM on January 23, 2010


"If you're not a US Citizen you don't have constitutional rights."

This is simply wrong.

There are some constitutional rights that non-citizens don't have, but there are many constitutional rights that non-citizens do have. See Yick Wo v. Hopkins, for example, which upheld Equal Protection rights for Chinese immigrants.

More on point, with respect to the Guantanamo detainees, the Supreme Court has held that they have the right under habeas corpus to file habeas petitions in federal court. See Rasul v. Bush.
posted by mikeand1 at 9:24 AM on January 23, 2010


The Supreme Court fairly consistently trashed both Balisong's and crapples' arguments when used by the Bush administration in 2008. So the answer is that it probably isn't constitutional.
posted by KirkJobSluder at 9:25 AM on January 23, 2010


Well, my first comment was deleted, but it was the rationale. Now the courts are asking the same question and hoping that congress will make a new law to settle the issue.
posted by Balisong at 9:30 AM on January 23, 2010


It's not constitutional. It's not in the US.

Did you read the question? It's not about their status while they're in Cuba, but about after they're moved to the U.S.
posted by odinsdream at 9:48 AM on January 23, 2010


It was something about the detainees not being considered people or something, but it didn't help the discussion.
posted by Balisong at 9:48 AM on January 23, 2010


It probably is not constitutional to hold anyone in the US without trial. However, de facto, what is constitutional is whatever the Supreme Court refuses to rule is unconstitutional. And the current Supreme Court majority does not seem interested in protecting the rights of so-called "enemy combatants" to the extent that citizens, aliens and even illegal aliens are protected. They seem to take the attitude that in times of war, the US government can do anything it wants in order to protect the nation. This in spite of the clear attitude of the Founding Fathers (as expressed in the Federalist Papers and elsewhere) that such an attitude leads to despotism.

The whole point of the Bill of Rights is to protect rights in times of national stress. That's when you need to protect them.

Should one of the conservative judges leave the Court, it is reasonable to suppose that the Supremes might well reverse their opinion.

Note, incidentally, that in Boumedienne v. Bush, the Supreme Court explicitly rejected the argument that placing the detainees in Guantanamo put them beyond the jurisdiction of the US Constitution. So it does not matter legally whether they're moved to Illinois or not.
posted by musofire at 9:48 AM on January 23, 2010


I'm a lawyer. This question is massively complex and you can get 5 different answers from 5 different lawyers. If I were them, I'd declare them POWs
posted by Ironmouth at 10:13 AM on January 23, 2010 [2 favorites]


I'm a lawyer. This question is massively complex and you can get 5 different answers from 5 different lawyers.

Well, I'm not a lawyer. But the above is the only correct answer to this question.
posted by dfriedman at 10:23 AM on January 23, 2010


Wow - I guess I was totally wrong. I guess I still had it in my mind, in spite of the fact that I read the question, that they were not in the US. The constitution is not binding anywhere else on earth, of course. But the comments above make it clear that it is binding to non-citizens within the US, which I didn't know. Sorry for the totally incorrect response!

I think, then, it must be about their status as enemy combatants, as someone else said.
posted by crapples at 11:01 AM on January 23, 2010


Guantanamo Bay, despite being on the island of Cuba, is not foreign soil. It has been part of the USA for over 100 years. Moving detainees from Guantanamo to Illinois changes absolutely nothing viz constitutionality.
posted by Sys Rq at 11:11 AM on January 23, 2010


Guantanamo Bay, despite being on the island of Cuba, is not foreign soil.

Incorrect.

Cuba granted the United States a perpetual lease over Guantanamo Bay in, I believe, 1912.

The United States has de facto jurisdiction over it; ultimate sovereignty lies with Cuba.
posted by dfriedman at 11:31 AM on January 23, 2010


More info about Guantanamo's sovereignty here.

The perpetual lease dates from 1903, not 1912. I don't know where I came up with 1912.
posted by dfriedman at 11:32 AM on January 23, 2010


The United States has de facto jurisdiction over it; ultimate sovereignty lies with Cuba. ... More info about Guantanamo's sovereignty here.

Uh... Keep reading.
The Cuban-American Treaty held, among other things, that the United States, for the purposes of operating coaling and naval stations, has "complete jurisdiction and control" of the Guantánamo Bay, while the Republic of Cuba is recognized to retain ultimate sovereignty.
We are talking about Guantanamo Bay Naval Base. That is most definitely US jurisdiction.
posted by Sys Rq at 11:55 AM on January 23, 2010


Sys Rq: That's actually what dfriedman said, and what the Supreme Court said in Boumediene v. Bush. So, yes, it is under the U.S.'s jurisdiction and control, and thus the U.S. has de facto sovereignty (and thus prisoners have the right to habeas corpus there, as they do in Illinois) ... even though Cuba retains ultimate sovereignty.
posted by SpringAquifer at 12:23 PM on January 23, 2010


That's actually what dfriedman said

Yes, after the incorrect assertion, "Incorrect." I was merely clarifying.
posted by Sys Rq at 12:38 PM on January 23, 2010


Well I guess the US government could sell a part of Illinois to Cuba and lease it back and that would make everything just fine.
posted by devnull at 12:50 PM on January 23, 2010 [1 favorite]


"The constitution is not binding anywhere else on earth, of course."

Wrong again.

While some rights have been held not to apply to non-citizens outside the United States (see, e.g., United States v. Verdugo-Uquidez), others have (see e.g., Reid v. Covert).

Perhaps you should think twice and do some research before making sweeping pronouncements about the scope of the Constitution.
posted by mikeand1 at 2:02 PM on January 23, 2010


No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
There are a lot of exceptions in there that the asker's snipped quote misses.

Most striking of which is: except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.

A very good case can be made that these guys were land forces or a Militia, and they were in service in a time of public danger. (Since war hasn't actually been declared.)

Further, the "without due process of law" part is also a gaping hole. All someone has to do is come up with a justification that what is being done to them is within the confines of due process, and the procedure is good to go.

And no, as much as some people would like it, the restrictions of the constitution DO apply to anyone under our authority. Citizens and non citizens alike.

(Not that I agree with it: one of the nice things about the US is our self-supposed fair justice system. It is fairly inconceivable to me that people are afraid to put these guys on trial. Especially when the people who fear putting them on trial are usually the "shining beacon on a hill" variety of patriot. It seems squarely unpatriotic to be proud of a system of justice, only to deny it to people we don't like. And immoral.)
posted by gjc at 2:04 PM on January 23, 2010


To jump off of mikeand1's point, no, the constitution doesn't apply to people not in the US and not citizens of the US and not interacting with an agent of the US government. The constitution is binding on (nearly) anyone inside the US and on many, but not all, actions of the US government outside its borders.

But I'd respectfully disagree with the Court on Verdugo-Uruidez. My belief is that if the Constitution is to have any power in our modern world, it *MUST* apply to all actions of the US Government and its agents wherever they happen to be. It would be a giant loophole to allow the government to act contrary to the constitution when they are outside the US, or to allow agents of the government to act outside the constitution. If someone is accused of a crime under US law, then all the restrictions of the constitution ought to apply.

(Although, I guess I see the point of that decision. It's more like they were saying that the 4th amendment doesn't apply because it doesn't apply. What I disagree with is the editorializing that since it would be difficult to implement, we don't have to.)

If we believe in the Constitution as a good way to run a country, then it needs to apply to all actions on behalf of that country.
posted by gjc at 2:20 PM on January 23, 2010


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