Over the weekend, Sen. Susan Collins released
a five-minute video in which she sounded as though she were possessed by the angriest, most unhinged version of Cheney. Collins recklessly accused the Obama administration of putting us all in serious danger by failing to wage War against the Terrorists. Most of what she said was just standard right-wing boilerplate, but there was one claim in particular that deserves serious attention, as it has become one of the
most pervasive myths in our political discourse: namely, that the U.S. Cons ution protects only American citizens, and not any dreaded foreigners. Focusing on the DOJ's decision to charge the alleged attempted Christmas Day bomber with crimes, Mirandize him and provide him with counsel, Collins railed: "Once afforded
the protection our Cons ution guarantees American citizens, this foreign terrorist 'lawyered up' and stopped talking" (
h/t). This notion that the protections of the Bill of Rights specifically and the Cons ution generally apply only to the Government's treatment of American citizens is blatantly, undeniably false -- for multiple reasons -- yet this myth is growing, as a result of being centrally featured in "War on Terror" propaganda.
First, the U.S. Supreme Court, in 2008, issued a highly publicized opinion, in
Boumediene v. Bush, which, by itself, makes clear how false is the claim that the Cons ution applies only to Americans. The
Boumediene Court held that it was uncons utional 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 Cons ution 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 Cons ution applies only to American citizens. That is such an inane, false, discredited proposition that no responsible person would ever make that claim.
What divided the
Boumediene Court was the question of whether foreigners held by the U.S. military
outside of the U.S. (as opposed to inside the U.S.) enjoy Cons utional protections. They debated how Guantanamo should be viewed in that regard (as foreign soil or something else). But not even the 4 dissenting judges believed -- as Susan Collins and other claim -- that Cons utional rights only extend to Americans. To the contrary, Justice Scalia, in
his scathing dissent, approvingly quoted Justice Jackson in conceding that foreigners detained
inside the U.S. are protected by the Cons ution (emphasis added):
Justice Jackson then elaborated on the historical scope of the writ:
"The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his iden y with our society . . . .
"But, in extending cons utional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." Id., at 770–771.
That's from Scalia, and all the dissenting judges joined in that opinion. It is indisputable, well-settled Cons utional law that the Cons ution restricts the actions of the Government with respect to both American citizens and foreigners. It's not even within the realm of mainstream legal debate to deny that. Abdulmutallab was detained inside the U.S. Not even the Bush DOJ -- not even Antonin Scalia -- believe that the Cons ution only applies to American citizens. Indeed, the whole reason why Guantanamo was created was that Bush officials wanted to claim that the Cons ution is inapplicable to foreigners
held outside the U.S. -- not even
the Bush administration would claim that the Cons ution is inapplicable to foreigners generally.
The principle that the Cons ution applies not only to Americans, but also to foreigners, was hardly invented by the Court in 2008. To the contrary, the Supreme Court -- all the way back in 1886 -- explicitly held this to be the case, when, in
Yick Wo v. Hopkins, it overturned the criminal conviction of a
Chinese citizen living in California on the ground that the law in question violated his Fourteenth Amendment rights to due process and equal protection. In so doing, the Court explicitly rejected what Susan Collins and many others claim about the Cons ution. Just read what the Court said back then, as it should settle this matter forever (emphasis added):
The rights of the pe ioners, as affected by the proceedings of which they complain, are not less because they are aliens and subjects of the emperor of China. . . . The fourteenth amendment to the cons ution is not confined to the protection of citizens. It says: "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." These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. . . . The questions we have to consider and decide in these cases, therefore, are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court.
Could that possibly be any clearer? Over 100 years ago, the Supreme Court explicitly said that the rights of the Cons ution extend to citizens and foreigners alike. The Court has repeatedly applied that principle over and over.