One of the more idiotic talking points I’ve heard on the Obama administration’s decision to try Khalid Sheikh Mohammed and several other 9/11 suspects in criminal court is that, by doing so, the administration is somehow granting those individuals rights they otherwise wouldn’t be entitled to.
But it doesn’t take a constitutional scholar to know that constitutional rights are not always reserved only for American citizens.
There are some rights that are specifically reserved for citizens, such as the right to vote. Take the 19th Amendment:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
In that instance, the constitution spells out a right that is only for citizens.
But take a look at the 6th Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
In that case, the constitution is specifically granting rights to ‘the accused,’ with no stipulation that they need be an American citizen.
The 14th Amendment, as another example, outlines some rights for citizens and other rights for everyone:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
[All emphasis mine]
In my previous post on this, I cited a number of different constitutional provisions in arguing that those suspected of and accused of crimes must be put on trial. None of the constitutional provisions I cited restricted the rights they granted to American citizens.
For instance, Article 3, Section 2 refers to “The trial of all Crimes” in stating that trials (except for impeachment) must be by jury. No stipulation is made that those provisions only apply to citizens.
The 5th Amendment says that “No person” can be “deprived of life, liberty, or property, without due process of law.”
And, as I noted above, the 6th Amendment makes reference to “the accused” and the 14th Amendment twice makes reference to “any person.”
The Obama administration isn’t choosing to grant rights to the accused–the accused already have those rights since they are being held by the United States of America. Granting someone rights and recognizing the rights they are already have are entirely different things that should not be confused.
Plus, prosecuting terror suspects isn’t at all unprecedented. A number of terrorists have already been successfully tried in criminal courts. For instance, according to the National Security Network:
The federal prison system safely holds or has held for extended periods of time a large number of convicted terrorists including:
- Ramzi Yousef. The mastermind of the 1993 World Trade Center bombings was convicted and sentenced in 1998 by the Federal District Court in Manhattan and is being held at ADX Florence, the supermax prison in Florence, Colorado. [NY Times, 1/9/98. NY Times, 4/5/03]
- Zacharias Moussaoui. Convicting of conspiring to kill Americans for his role in the 9/11 attacks, Moussaoui is currently serving a life sentence at the supermax prison in Colorado. [NY Times, 5/3/06. NY Times, 5/14/06. NY Times, 5/5/06]
- East African embassy bombing perpetrators. Wahid el-Hage, Mohammed Sadiq Odeh, Mohammed Rashed al-Owhali, and Khalfan Khamis Mohammed are all serving in ADX Florence. [NY Times, 12/25/01]
- Richard C. Reid. The so-called “Shoe Bomber,” Reid was convicted for trying to blow up an airliner over the Atlantic with explosives in his shoe. He is currently serving a life sentence at ADX Florence. [NY Times, 1/31/03. NY Times, 5/14/06]
- Timothy McVeigh. Convicted of killing 168 people by blowing up the Alfred P. Murrah Federal Building in Oklahoma City, McVeigh was held in ADX Florence until his execution on June 11, 2001. [NY Times, 6/11/01]
- Ali Saleh Kahlah al-Marri. The only person known to be held as an enemy combatant in the continental United States, al-Marri spent six years in the Naval Consolidated Brig in Charleston, South Carolina and is now being held in the Federal Correctional Institution in Illinois. [Associated Press Via Fox News, 5/1/09. NY Times, 4/30/09]
- Sheikh Omar Abdel-Rahman. Responsible for plotting a series of bombings and assassinations, Omar Abdel-Rahman is currently serving a life sentence at Butner Federal Correctional Institution in North Carolina.
- Muhammad Salameh. Convicted for his role in the 1993 World Trade Center bombing, Salameh is serving a life sentence in ADX Florence. [Library of Congress, 9/99. NY Times, 3/5/94]
In fact, there are already 355 terrorists–216 international, 139 domestic–in American prisons.
In other words, the Obama administration is upholding the Bush and Clinton administrations’ precedent of recognizing the rights of accused terrorists and bringing them to justice through criminal proceedings.
Some people are arguing that military tribunals would be a better place to try these individuals. Perhaps, but the Supreme Court ruled in Boumediene v. Bush that military tribunals, as established by the Military Commissions Act of 2006, are unconstitutional.
At first, President Obama pledged to end those tribunals; in time, he reversed his position and now reserves the right to use them in certain cases. I think that decision is utterly and absolutely wrong; the Obama administration needs to abide by Boumediene and end unconstitutional military tribunals once and for all.
In short, putting terror suspects on trial is necessary. These people need to pay for their crimes, they need to be brought to justice–throwing them in a hole somewhere isn’t justice, and all that does is give their colleagues fodder with which to attack the United States.
In fact, as Glenn Greenwald said, denying terrorists their constitutional rights is exactly what they want us to do, since it bolsters their’ case that America is not a just or moral country. We should not stoop so low as to prove these heinous individuals and their extremist ideology right to any extent, in any capacity.
America is better than its enemies because we believe in inalienable rights that apply to everyone, even those who would not afford us the same rights if the situation were reversed.
We are better than our enemies. This fact is the reason why America has been victorious in nearly every war it has ever fought; trying to change that, to rob the United States of its moral authority is a surefire path to defeat. If we are to prevail against terrorism, we must show that terrorists do not have the power to force us to abandon our fundamental democratic values.