Stopping the Constitution At The Border
It's been over thirty years since I took Constitutional Law, but I still remember the Reid v Covert case. The facts are pretty straightforward: Clarice Covert took an ax to her husband, then serving in the Air Force in Great Britain. She admitted the act and was tried, not by a jury of her peers, but by a Court Martial. It took two tries, but the US Supreme Court finally got it right and held that she was entitled to her Sixth Amendment rights even when tried outside the US.
A well-reasoned op-ed piece by Karl Raustiala (a law professor at UCLA) in today's Los Angeles Times suggests that the holding in Ms. Covert's case could easily be expanded.
Covert's case, which had the distinction of being ruled on twice by the U.S. Supreme Court, upheld for the first time the principle that the Bill of Rights reaches beyond U.S. borders. The court ruled that just because Covert was tried abroad, she didn't forfeit her 6th Amendment right to a jury — and, more broadly, that the government does not enjoy unchecked power simply because the trial of an American is held overseas.
...It is because of Reid vs. Covert that the Bush administration has not detained any U.S. citizens there.
Now, the debate is moving to the next level. While the government argues that the precedent applies only to Americans, and therefore that it is free to detain and try foreigners without the protections of the Bill of Rights as long as it does so outside U.S. territory, others argue that the principle should be expanded. To remain true to the larger meaning of Reid vs. Covert, they argue, the Bill of Rights should be applied to foreigners as well. The Bill of Rights should restrain the federal government when it acts overseas against foreigners, just as it already restrains the U.S. government when it tries aliens at home. This would send an important signal that the U.S. lives by its Constitution, a document that balances the executive, the judiciary and the legislature and rejects unfettered executive power. [Emphasis added]
This isn't as big a reach as the current administration and its supporters will claim, it's simply the other side of the constitutional coin: rights are guaranteed to individuals by checking the power of the government. The government must act within constitutional bounds when dealing with non citizens on American soil. Why should it not be required to act within those same constitutional bounds outside the borders?
Prof. Raustiala points specifically to those detainees being held at Guantanamo Bay (who are held there so that the government didn't have to deal with those pesky constitutional rules): he wouldn't go so far as to challenge a Military Commission law which was reasonbly drafted because, after all, "the laws of war" do apply. However, he suggests, US courts would still have the ability to review those trials to make certain they complied with constitutional requirements.
Prof. Raustiala's logic isn't all that tortured. It affirms that this was intended to be a nation of laws, a nation that respected and protected the rights of individuals.
Nicely done, sir.
A well-reasoned op-ed piece by Karl Raustiala (a law professor at UCLA) in today's Los Angeles Times suggests that the holding in Ms. Covert's case could easily be expanded.
Covert's case, which had the distinction of being ruled on twice by the U.S. Supreme Court, upheld for the first time the principle that the Bill of Rights reaches beyond U.S. borders. The court ruled that just because Covert was tried abroad, she didn't forfeit her 6th Amendment right to a jury — and, more broadly, that the government does not enjoy unchecked power simply because the trial of an American is held overseas.
...It is because of Reid vs. Covert that the Bush administration has not detained any U.S. citizens there.
Now, the debate is moving to the next level. While the government argues that the precedent applies only to Americans, and therefore that it is free to detain and try foreigners without the protections of the Bill of Rights as long as it does so outside U.S. territory, others argue that the principle should be expanded. To remain true to the larger meaning of Reid vs. Covert, they argue, the Bill of Rights should be applied to foreigners as well. The Bill of Rights should restrain the federal government when it acts overseas against foreigners, just as it already restrains the U.S. government when it tries aliens at home. This would send an important signal that the U.S. lives by its Constitution, a document that balances the executive, the judiciary and the legislature and rejects unfettered executive power. [Emphasis added]
This isn't as big a reach as the current administration and its supporters will claim, it's simply the other side of the constitutional coin: rights are guaranteed to individuals by checking the power of the government. The government must act within constitutional bounds when dealing with non citizens on American soil. Why should it not be required to act within those same constitutional bounds outside the borders?
Prof. Raustiala points specifically to those detainees being held at Guantanamo Bay (who are held there so that the government didn't have to deal with those pesky constitutional rules): he wouldn't go so far as to challenge a Military Commission law which was reasonbly drafted because, after all, "the laws of war" do apply. However, he suggests, US courts would still have the ability to review those trials to make certain they complied with constitutional requirements.
Prof. Raustiala's logic isn't all that tortured. It affirms that this was intended to be a nation of laws, a nation that respected and protected the rights of individuals.
Nicely done, sir.
Labels: Military Commissions Act
posted by Diane at 5:09 AM
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