“The Constitution Does Not Apply to American Citizens Overseas”

Krauthammer makes the claim.

Greenwald declares it a demonstrably false absurdity.

Let’s first look at what Charles Krauthammer said:

Now we’re talking about a larger, more controversial issue: the killing-by-drone in Yemen of al-Qaeda operative Anwar al-Awlaki. Outside American soil, the Constitution does not rule, no matter how much Paul would like it to.

Glenn Greenwald’s response can be summarized by the following:

1) First, look at how absurd the logical implications of this statement are. If the Constitution did not apply to citizens overseas, the government could simply wait for a journalist or individual it didn’t like to go visit another country and then assassinate him.

2) But maybe you agree with this ridiculous conclusion. Well, the Supreme Court has already ruled on this in Reid v. Covert (1957), saying “we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights.”

3) Now, I’m not a big fan of the Supreme Court myself (this is my opinion, not necessarily Greenwald’s). It, being filled by humans, certainly is not infallible, even assuming proper intentions, which is a hard thing to assume when presidents play their partisan games in appointing judges (which is even scarier when you consider certain foreign policy issues have a bipartisan consensus, as explicitly stated by Krauthammer in his above piece). But let’s examine their reasoning here. They state:

The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.”

In other words, since the federal government is the creation of the Constitution, our inclination should be to treat it in all circumstances as binded by the Constitution, unless explicitly stated otherwise. The Constitution itself would have to say “The Constitution does not bind the federal government in any way when acting on citizens overseas” for us to accept such a statement.

4) The Supreme Court cites other governments in history where this (the government had to give due process to citizens outside its territory) is the case. It certainly was not a new concept at the time of the founding of our country.

5) There is no reason to choose certain constraints on the government as fundamental and state that these fundamental constraints applying to the government overseas but other non-fundamental constraints being illegitimate overseas.

6) Even if we accepted that only certain fundamental constraints apply to the federal government overseas, the Court says

“Moreover, in view of our heritage and the history of the adoption of the Constitution and the Bill of Rights, it seems peculiarly anomalous to say that trial before a civilian judge and by an independent jury picked from the common citizenry is not a fundamental right. . . . Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency or convenience.”

 

I’m not sure if I’ve done a post like this before, but the summary is mainly for my own benefit and not for that of others. I’d recommend you read both of the articles above to have a proper understanding of Greenwald’s case. If this summary is beneficial for you too though, then that’s fantastic.

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Posted on March 15, 2013, in Politics and tagged , , , , , , , . Bookmark the permalink. Leave a comment.

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