There is a great debate in the United States over whether or not terrorists have the same rights as American citizens, or even if terrorists have any rights under the Constitution at all. President Bush has maintained that captured terrorists are enemy combatants, and do not have the rights an privileges guaranteed by the Constitution. Bush is so adamant that terrorists do not have rights under US law that they are imprisoned at Guantanamo Bay, where Cuba technically has sovereignty even though the United States has effective legal control.
Another popular claim is that captured terrorists are actually prisoners of war. Prisoners of war do not typically get to challenge their detention and so captured terrorists must be held until hostilities have ceased.
Some even go as far as claiming that not even illegal immigrants have rights under the Constitution, because the Constitution only applies to American citizens.
There are several flaws in these claims. I’ll address the first one in this post and cover the others later. First, let’s evaluate the notion that non-Americans do not have constitutional rights. If one reads through the Constitution it becomes apparent that all references to “citizens” in the Constitution have nothing to do with the rights of the people. Most references are rules as to how one can participate in the political/election process. In fact, the Bill of Rights makes no distinctions between citizens and non-citizens.
Consider this: How can we be sure of our government’s claims that a suspected foreign terrorist is indeed a foreign terrorist until that person has had a fair and impartial trial to determine his status? What is to prevent an American citizen from being arrested, detained, and accused of being a foreign terrorist? That person would have no way to confront his accusers and prove his innocence.
This leads me to my conclusion. In truth, the Constitution does not apply to non-Americans. It doesn’t even apply to American citizens. The Constitution is a contract between the federal government and the states, and thus applies to the federal government. The Constitution itself is a list of rules and powers of the federal government. It is specifically enumerated and if it isn’t listed, the government isn’t allowed to do it. The Bill of Rights is a list of things the federal government may not do. Nowhere does it make an exception for non-citizens, terrorism, etc.
