Category | Op Ed

Should non-U.S. citizens have Constitutional rights?

Published on January 12, 2010 by Justin Hayes

The recent decision from the Justice Department to hold trials in New York City civilan courts for five of the alleged 9/11 planners held at Guantanamo Bay has caused a lot of debate and outrage in recent months. Many of the opponents of this action say that these detainees should be called “enemy combatants,” not criminals, because they were caught on the battlefield and do not deserve the same rights as U.S. citizens.

The Constitution is a work of genius and the most brilliantly written governing document in history, but even it has flaws. For example, the Interstate Commerce Clause gave politicians just enough leeway to justify actions that would never have been approved by the founding fathers.

The document also fails to clearly mention whether or not the rights of non-U.S. citizens are legally protected. The Fourteenth Amendment guarantees protection of the rights of all citizens, but says nothing about non-citizens.

In defense of the decision, one could point to the Sixth Amendment as a legal basis for trying the detainees in New York. Supporters point to the fact that, according to the amendment, the accused have a right to be tried in the state and district where the crime was committed.

However, opponents use the same amendment to support their argument, explaining that this was not a “criminal” act, but an act of war committed by “enemy combatants” - from what country? On whom did we declare war?

That justification becomes a little foggy because this was not an act committed by another state or nation, but a group of individuals conspiring to commit a terrorist act. If Oklahoma City bomber Timothy McVeigh was tried in criminal courts, why should these five defendants be tried by a military tribunal?

Many opponents use another part of the Sixth Amendment to put on a façade of concern for justice and fairness. They argue that these defendants will never receive an impartial jury in New York, and therefore should be tried by a military tribunal.

So a professional judge and a jury of citizens will be less impartial than a group of military officers? Military tribunals lack an appeal mechanism found in federal courts. Even in most federal court cases, it is impossible to have a completely impartial jury, but our legal system remains effective.

Many of the outcries about the Justice Department’s decision do not come from the traditional statists, but conservatives - the champions of liberty and individual rights, right?  That’s what many modern commentators on the right proclaim to be.

Our society is founded upon the idea that all men are born with natural rights. To deny non-citizens the fundamental rights of U.S. citizens is a denial of the existence of natural rights in the first place.

Our Constitution and Bill of Rights are based on the same idea of natural rights. According to Ayn Rand, rights “are derived from man’s nature as a rational being and represent a necessary condition of his particular mode of survival.”

We have a right to life that protects us from the force of others by giving us the power of self-defense; we have a right to liberty that protects us from a tyrannical government by giving us legal safeguards such as the right to a trial; and we have a right to property that protects us from starvation by giving us the facilities of production. All rights are necessary to our self-preservation, protecting us from the force of other individuals, the government and foreign aggressors.

Our rights do not come from God or the government, but from nature and reason. The existence of God cannot be rationally proven, and belief in such a being is solely based on faith and revelation. To say that our rights come from God imply that our rights do not come from reason, but mysticism. This notion leaves the very concept of rights meaningless and vulnerable to the whims of government.

To believe that only American citizens have the constitutional protection of these rights would indicate that these rights come from citizenship granted by the government, not from nature or reason. The implications of that notion would lead us straight to tyranny.

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