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Do Terrorists Have Due Process Rights?

Let America be America again.
Let it be the dream it used to be.
Let it be the pioneer on the plain
Seeking a home where he himself is free.
—Langston Hughes, “Let America be America Again”

After my most recent column on the morality and legality of torture, several dozen citizens of the Internet — all of them undoubtedly concerned with the state of my education — wrote to inform me that “due process rights are for citizens.” Several of these educational messages included helpful details about how a little bit of waterboarding would help drill this patently obvious fact into my liberal head.

The view that American due process rights are only for American citizens is intuitive and pervasive. It is also completely wrong. And I don’t mean wrong in an Abstract-Moral-Universal-Human-Decency way. I mean wrong in a You-Should-Have-Studied-For-That-Middle-School-Civics-Test way.

This is just how the Constitution works. The Fifth Amendment says (among other things) that “no person shall be . . . deprived of life, liberty, or property without due process of law.” This is followed up in the Fourteenth Amendment with “nor shall any state deprive any person of life, liberty, or property, without due process of law.”

Nowhere is the word “person” qualified with any citizenship requirements, and this is significant, for it means — and has always meant — that the requirement to provide due process of law is a requirement that attaches to the state, not a right that applies to citizenship.

The view that American due process rights are only for American citizens is intuitive and pervasive. It is also completely wrong.
Michael Austin
This is not even vaguely controversial. We do not have a different legal system for non-citizens. There is one kind of American justice, and it includes due process rights for everyone.

This, in fact, is the entire legal argument behind the Guantanamo Bay facility. Since it is technically not on American soil, it has been interpreted as a kind of non-place where agents of the state are not bound by the Constitution. And note that, by this logic, they could torture citizens there too.

But isn’t this a military operation and aren’t prisoners of war handled differently?

This is also an easy question to answer, since, until 2006, the United States government officially rejected the claim that terror suspects were prisoners of war entitled to the protections of the Geneva Conventions. Had they actually been treated as prisoners of war at the time, waterboarding and other forms of torture would have been expressly prohibited.

But there are several reasons that it does not make sense for terror suspects to be treated as prisoners of war.

In the first place, there is no war. Wars are waged against states, and prisoners of war are guaranteed a fairly high level of protection because, as agents of the state, they are not held culpable for their actions against another state. Terrorism is not a state; it is a tactic.

The non-state actors involved in (or suspected of) terrorism do not fit this category. These individuals are suspected of intentionally harming the United States on their own initiative, without the formal authority of any state. That is not an act of war; it is a crime.

“That terrorists are bad, evil people who do horrible things” is not a justification for going outside the rule of law to torture them. Our system is supposed to be strong enough to protect us against really bad people. And we are supposed to be able to do that without becoming really bad people ourselves.

By creating a category outside of both international POW conventions and American judicial processes, the government of the United States declared itself free of accountability and oversight. And, even more disturbingly, it betrayed a stunning lack of faith in America’s Constitution and its judicial system and a willingness to become the thing that we feared the most.

Please let America be America again.

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