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May 14 2013

The bill of rights applies to US citizens abroad

There is this curious belief by people who want to defend president Obama’s right to kill even US citizens abroad that US citizens no longer have the same rights under the US constitution once they leave the country. Charles Krauthammer is the latest person to make this claim, saying in a recent column that “Outside American soil, the Constitution does not rule”.

Glenn Greenwald says that this is simply false both as a practical matter and the law.

To begin with, think about what it would mean if Krauthammer’s claim were true: does anyone think it would be constitutionally permissible under the First Amendment for the US government to wait until an American critic of the Pentagon travels on vacation to London and then kill him, or to bomb a bureau of the New York Times located in Paris in retaliation for a news article it disliked, or to indefinitely detain with no trial an American who travels to Beijing or Lima or Oslo and who is suspected of committing a crime? Anyone who believes what Charles Krauthammer said this morning – “Outside American soil, the Constitution does not rule” – would have to take the patently ludicrous position that such acts would be perfectly constitutional.

As for the law, Greenwald points out that the US Supreme court had already ruled definitively on this matter back in 1957 in a case that involved the trial of two wives of US servicemen serving abroad, one in England and the other in Japan. They had been accused of murdering their husbands and the military had tried them overseas using a court martial process even though the wives were themselves not members of the military. These courts martial were carried out on military bases using military tribunals, like the ones being used right now at Guantanamo, that do not have the same safeguards that the regular legal system provides.

I looked up the Reid v. Covert case cited by Greenwald and the majority opinion written by justice Hugo Black is quite unequivocal. In it he gives a spirited defense of the need to maintain a steadfast defense of the Bill of Rights and the dangers inherent in using military tribunals with their lax protections in place of the trial by jury that the constitution requires. Black says (citations removed, all italics are mine):

At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. 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. This is not a novel concept. To the contrary, it is as old as government.

The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and, if allowed to flourish, would destroy the benefit of a written Constitution and undermine the basis of our Government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes. But we have no authority, or inclination, to read exceptions into it which are not there.

It is urged that the expansion of military jurisdiction over civilians claimed here is only slight, and that the practical necessity for it is very great. The attitude appears to be that a slight encroachment on the Bill of Rights and other safeguards in the Constitution need cause little concern. But to hold that these wives could be tried by the military would be a tempting precedent. Slight encroachments create new boundaries from which legions of power can seek new territory to capture.

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

This is powerful stuff, a far cry from the way our present courts yield to the government’s snubbing of the constitution in the name of national security and the war of terror.

Apart from the morality of governments murdering their citizens without any due process (I find it curious how our media uses the euphemism of ‘extrajudicial executions’ to give a quasi-legal respectability to these indefensible actions) without the benefit of due process, there would be chaos if other governments were to follow the US lead and allowed to declare open season on their own citizens while they are abroad and murder them with impunity.

At present, people leave countries and become refugees because they fear persecution by their governments. How can it make sense that they would then have even less protection from those same governments than if they had stayed at home?

11 comments

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  1. 1
    Gregory in Seattle

    What we need is a clear ruling by the courts that the Constitution and its attendant rights apply to all matters arising under the jurisdiction of US law. All actions taken by the government — with regards to foreigners in the US, by US Border Control and Customs operating just outside our borders in other countries, by the CIA, the military and other agents of the government — are either legal and therefore subject to the restrictions and limitations of the constitution, or they are illegal and therefore criminal actions. All persons targeted by legal US actions — people in the United States, people at US borders, people abroad — have rights to constitutional protections and have legal recourse under the constitution when targeted by illegal US actions.

    This would be reasonable, which is why I’m not holding my breath for this.

  2. 2
    Corvus illustris

    Black is a strange and self-inconsistent figure in US constitutional philosphy. It is wonderful that he defended the rights of Americans abroad, but for Americans at home there was only one defender in the Korematsu matter.

  3. 3
    Kevin

    When has Krauthammer said anything remotely worth listening to? When has even been factually correct?

  4. 4
    left0ver1under

    “Outside American soil, the Constitution does not rule”

    Actually, he’s right – US law does not apply outside the US. The US has neither the right nor jurisdiction to do these things.

    International law and domestic laws of other nations *do* apply, and the US has no jurisdiction. Ethically, US drone strikes on foreign soil without permission of that country are no different than terrorists blowing up bombs on US soil or killing people in US embassies. There’s no difference between drones killing US dissidents on foreign soil and the Soviets murdering defectors on foreign soil.

  5. 5
    Pierce R. Butler

    Kevin @ # 3: When has Krauthammer … even been factually correct?

    Back in the ’08 primary season, when most of the Repub candidates avowed creationism, Krauthammer was one of the very few right-wing pundits who spoke out for evolution.

    I’ll let ya know as soon as I can think of another example of him getting it right, but please don’t hold your breath waiting for me…

  6. 6
    felicis

    left0ver1under – you are correct, but missing the point. The US Constitution applies to any action the US government takes, anywhere in the world. That is a different statement from, “US law does not apply outside the US,” which is only partially true. The Uniform Code of Military Justice (UCMJ, US Law) applies to soldiers no matter where they are operating. International Law only applies (to the US Government) as it is recognized through treaties ratified by the Senate – a procedure spelled out in the US Constitution. The domestic laws of other nations may or may not apply depending on the specific circumstance.

    Your ethical argument is a bit of a non sequitur – it’s correct, but not really a point either for or against the proposition.

  7. 7
    felicis

    As far as the bill of rights go – I have always held the position that, if we truly believe these to be *human* rights, that they should apply to anyone in US custody anywhere. The idea that ‘enemy combatants’ did not have rights, or that any foreign person on US soil lacks the same rights we give ourselves has always bugged me. Now it’s another step further – rights only apply to US citizens on US soil? And then, only when convenient? Nonsense! They are no longer ‘rights’ at that point, merely commonly ignored behavioral guidelines.

  8. 8
    Corvus illustris

    Actually, he’s right – US law does not apply outside the US. The US has neither the right nor jurisdiction to do these things. … International law and domestic laws of other nations *do* apply, and the US has no jurisdiction.

    Um … don’t you need to make some distinctions? On one hand, if a USAmerican commits a crime in a foreign country against its laws, s/he will not have the benefits of US constitutional safeguards, e.g., against cruel and unusual punishment in Singapore. On the other, a US citizen in another country can commit crimes at US law for which s/he can be charged at home upon return. (I suspect that Krauthammer may fall back on these notions if he is pressed.) The drone killings are presumably murders commited by an agent of the US in the country/ies in which they occur, and such a country could in principle prosecute the US agents. Soviet agents killing defectors in the US, if apprehended, would certainly be subjected to state or federal laws. Nonetheless, Greenwald’s (and I presume Mano’s) point is that, per the quoted supreme court ruling, the US constitution imposes restraints on the actions of US agents against US citizens, whether the actions occur at home or abroad.

  9. 9
    Tsu Dho Nimh

    He’s sort of right … an American citizen arrested in a foreign country is often totally surprised by the fact that the US consittution doesn’t apply to them. The only thing a consulate can do for them is make sure they get the treatment the laws of that country specify for that crime. And often non-citizens have fewer rights than citizens.

  10. 10
    Mano Singham

    The point is not that foreign governments don’t apply the US constitution. They have their own laws and constitution. The point here is that the US constitution in binding on the US government in how it treats US citizens abroad.

  11. 11
    Mano Singham

    You have stated my point precisely. Thanks!

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