Does the Constitution Protect Non-Citizens?

In the last few years, we have all heard critics of the government claim that the right of Habeas Corpus has been suspended for the prisoners at Guantanamo Bay in direct violation of the U.S. Constitution. I have always viewed this claim with some skepticism, because it has been my understanding that the Constitution only protects American citizens ("we the people"), and not to terrorists or prisoners of war. Last week, this argument came crumbling down when I read a Salon article about this very topic.

Now let me say here that I'm not a big fan of Salon. The publication leans far too left for me, and tends to do so with such arrogance that I often have a hard time separating the facts from the patronizing outrage. This is particularly true of Salon columnist Glenn Greenwald's writing, and the article in question (which he authored) is no exception. The underlying tone of the article is "only an ignorant idiot could possibly disagree with me," and that kind of thing just isn't helpful. But his points are excellent, so I thought I'd quickly summarize them here as objectively as I could:

1. The U.S. Supreme Court, in 2008, issued a highly publicized opinion, in Boumediene v. Bush, which makes clear the Constitution does not only apply to Americans. The Boumediene Court held that it was unconstitutional for the Military Commissions Act to deny habeas corpus rights to Guantanamo detainees, none of whom was an American citizen (indeed, the detainees were all foreign nationals outside of the U.S.).  If the Constitution applied only to U.S. citizens, that decision would obviously be impossible.  What's more, although the decision was 5-4, none of the 9 Justices—and, indeed, not even the Bush administration—argued that the Constitution applies only to American citizens.

2. There are millions of foreign nationals inside the U.S. at all times—not only illegally but also legally: as tourists, students, workers, Green Card holders, etc. Doesn't the Bill of Rights apply to them? If a foreign national is arrested and accused by the U.S. Government of committing a crime, can they be sentenced to prison without a jury trial, denied the right to face their accusers, have their property seized without due process, be subjected to cruel and unusual punishment, and be denied access to counsel? Anyone who claims that the Constitution only protects American citizens, but not foreigners, would necessarily have to claim that the U.S. Government could do all of that to foreign nationals. Would it be Constitutionally permissible to own foreigners as slaves on the ground that the protections of the Constitution—including the Thirteenth Amendment—apply only to Americans, not foreigners? Obviously not.

3. The Bill of Rights says nothing about "citizens." To the contrary, many of the provisions are simply restrictions on what the Government is permitted to do ("Congress shall make no law respecting an establishment of religion...or abridging the freedom of speech"; "No soldier shall, in time of peace be quartered in any house, without the consent of the owner").  And where rights are expressly vested, they are pointedly not vested in "citizens," but rather in "persons" or "the accused" ("No person shall...be deprived of life, liberty, or property, without due process of law"; "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 wherein the crime shall have been committed...and to have the assistance of counsel for his defense").

There are, of course, certain Constitutional rights that are clearly reserved only for citizens—such as the right to vote or to hold elective office—but when that is the case, the Constitution explicitly states that to be so ("The right of citizens of the United States to vote shall not be denied or abridged by the United States...").  Indeed, the Fourteenth Amendment, in the very same clause, demonstrates the distinction between "citizens" (which only includes "Americans") and "persons" (which includes everyone), and proves that the former is merely a subset of the latter.

Summarized from "Susan Collins spreads central myth about the Constitution," Glenn Greenwald, Salon.com, 2/1/2010

I should note that this argument only addresses the question of whether or not the Constitution applies to non-citizens—it does not close the case on the Constitutionality of Guantanamo. There are many other factors at play, such as whether U.S. federal courts have jurisdiction over areas that are not on U.S. soil, the prisoner's status as POWs, terrorists, or enemy combatants, and the Geneva Conventions. However, so far the Supreme Court has ruled in favor of Guantanamo detainees on more than one occasion, and after hearing Greenwald's argument I think I understand why.

Image: micmol