Does Anyone Deserve Constitutional Rights?

by Tommy Crocker

A decision to try Khalid Sheikh Mohammed (KSM) and four others in federal court in New York has sparked a new round of debate over detention policy.  The Administration is on course to maintain a three-tiered system:  criminal prosecutions for some detainees in U.S. federal courts, prosecutions of others before a revamped Military Commission, and indefinite detention for still others who can neither be tried nor released.  There are problems with this ad hoc framework, some of which are derived from the need for a comprehensive policy to replace the failed and flawed executive unilateralism under which it was developed.  Congress and courts have put their belated mark on some aspects of the policy, but we continue to operate broadly within its confines. 

One of the contributing authors of the failed executive unilateralism criticizes the Obama Adminstration’s decision to prosecute KSM in New York because “The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism.”  Criminal trials must be very harmful activities if they will “cripple” U.S. anti-terrorism efforts.  How will they do that?  Writing in the WSJ, John Yoo argues:  “Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown.”  The openness required by criminal trials is the purported harm.  Why would this prosecution be any more harmful that the prosecution of Jose Padilla or Zacharias Moussaoui, for example, or Ahmad Omar Abu Ali for that matter?  The criticism repeats as its primary evidence of harm an unsubstantiated claim regarding intelligence losses that occurred because of the prosecution of Sheikh Omar Abdel Rahman for the 1993 World Trade Center bombing.  No doubt, care will have to be taken in how the U.S. prosecutes its case, but the alarmist claim that anti-terrorism will be “crippled” belies credibility.  This issue, however, is not the only one Yoo raises, and not the one that primarily interests me. 

He further claims:  “Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights?”  He then asks a series of additional questions about pre-trial procedure in a “war zone.”  As bad as revealing U.S. intelligence sources may be, “even more harmful” would be the requirement that U.S. officials recognize that terrorism suspects have rights, such as the right to be free from coerced (tortured) confession.  Focusing on Miranda is telling, since Yoo was instrumental in providing the legal authorization for U.S. torture practices.  Here we get at the heart of the “war versus crime” dichotomy motivating critics like Yoo:  “KSM and his co-defendants will enjoy the benefits and rights that the Constitution accords to citizens and resident aliens. …”  Or, any person within the jurisdiction of the U.S., an important point Yoo still fails to recognize.   The “war on terror” was said by Alberto Gonzales to be a “new kind of war” rendering “quaint” some of the rights afforded by the Geneva conventions.  This temperament carries over to hostility to granting terrorism suspects constitutional rights in criminal trials, but fails to articulate how adherence to constitutional and human rights norms can themselves be “even more harmful to our national security.”  How is it even remotely plausible to claim that if U.S. personnel must conduct themselves in rough conformity to constitutional (and by implication, human rights) norms, even greater harm to our national security will occur?  In making this claim, Yoo reveals that one motivation for the “new kind of war” model is the attempt to free U.S. officials from certain constitutional and human rights constraints.  Freedom from legal constraint may have its pragmatic advantages, at least in the short run.  This mistaken view is one reason executive unilateralism has led in the long run to an ad hoc detention policy, repaired in part only after the Supreme Court held that detainees were in fact protected by Geneva and were in fact entitled to U.S. court jurisdiction. 

Untethered from an institutionally unrealizable executive unilateralism, there does not seem to be much purpose in reasserting a need for officials to act free from constitutional and human rights constraints.  So why do we see this view reappear as a reason why criminal trials of terrorists cause “even more harm” to national security?  

There seems to be implied or underlying claim about moral desert.  This thought appears in a statement attributed to Sen Lindsey Graham, who sought (and failed) to have Congress forbid federal court trials of 9/11 suspects.  He claimed that “terrorists don’t deserve the same constitutional rights as U.S. citizens.”  Why not?  Any person we seek to punish criminally for heinous acts against U.S. persons, places, or interests “deserves” the protections afforded by a society dedicated to the rule of law.  Since Sen. Graham advocates the use of Military Commissions, he is not claiming that terrorists don’t deserve any legal protections—just not robust constitutional ones.  If this is correct, then for me it is an entirely new claim that does not depend on issues of military necessity, territoriality, trial pragmatics, or national security.  It depends on a judgment that persons accused of terrorism deserve something less than robust criminal procedure protections.   It also has a remote and troubling relation to national security. 

What could serve as the basis for such a judgment?  It does not seem to be based on a genuine worry that there is much risk that the prosecution might fail.  Experience in other terrorism trials instructs quite the opposite.  Neither Sen. Graham nor Mr. Yoo makes this clear, but they seem to rely on a judgment about the nature of the acts perpetrated by terrorists.  Are some acts so heinous that by their very nature, they morally “deserve” to be punished by less robust rights-protecting procedures?  I can see that for pragmatic purposes, different criminal acts may lead to differing needs to seek punishment in ad hoc tribunals or military commissions which may afford alternative procedures.  But to my knowledge special tribunals do not establish differing degrees of rights-protections based on moral judgments about the nature of the underlying criminal acts over which they sit in judgment.  Ordinarily, questions of moral desert occur both before and after a trial—in judgments about which acts to criminalize and how severe to punish them—not in decisions about trial procedure itself, nor in decisions about who receives basic human rights protections.  Thus, the underlying view is not only that we are engaged in a “new kind of war” facing a new kind of enemy whose very warlike actions are illegal, but those actions are of a kind morally deserving of a lesser legal process. 

I think this view mistaken.  I also see no reason to think that precluding this type of moral judgment harms national security—quite the opposite.  Procedural protections are not, nor should they be, grounded in prior judgments of moral desert.  To go down this path is to go down the path of varying human rights protections based on moral judgments about who deserves them.  On this score, we make no further distinctions than to say that if anyone deserves them, we all do.

12 Responses

  1. TC,

    While I’m not necessarily agreeing with Graham’s justification, I believe you are misstating his argument.  The very quote you cite sets up the contradistinction between terrorists and US citizens.    When he says “terrorists,” it is fair to presume Graham means non-citizen nationals accused of terrorism.  As such, in Graham’s formulation, the moral judgment is instrinsically linked to the citizenship (or lack thereof) of the individual accused of terrorism.  You may still disagree but his argument is somewhat better grounded than mere moral judgment.

  2. I agree with Mr. Crocker’s statement that “[a]ny person we seek to punish criminally for heinous acts against U.S. persons, places, or interests “deserves” the protections afforded by a society dedicated to the rule of law” the and I am similarly troubled by the statements of Sen. Graham. There also seems to be missing any discussion on the reciprocal effects that such treatment of foreign nationals might have on U.S. citizens accused of crimes abroad. A foreign state, following the guidance of Sen. Graham, may decide to curtail  even the most basic of procedural rights for a U.S. citizen who is alleged to have committed similar acts abroad. I also think that the term “alleged” has all to often been missing from the discussion of detainees suspected of terrorism, both in their relocation and prosecution. It is worrying to hear the fear of both the media and the public when they are discussing the relocation of detainees which they continually refer to as terrorists. When did the “society dedicated to the rule of law” forget one of its most honored principles–the presumption of innocence.  

  3. I never really understood the insistence of US courts and lawyers on limiting fundamental human rights to US citizens or residents. While it is clear that a rather outdated document such as the US constitution may limit enjoyment of essential procedural rights to these two categories of people, it surely must be recognized that ‘all men [and women] are created equal’ and ‘that they are endowed by their Creator with certain unalienable Rights’. In many other civilized countries, procedural rights do not depend on nationality of the accused (or suspect) and I really fail to see the rationale for the limitations under US law – the principled reasons (of course I understand the legalistic approach and the fact that US politicians are accountable to a specific constituency, but still…). Can anybody enlighten me? No court in Germany, Sweden, or France would require Miranda-type warnings for citizens and not for foreigners. Of course, there might be a difference in treatment when dealing with war-like situations, but again the difference would not be depending on the nationality or residence of the accused, but rather on the circumstances of arrest…it just seems so arbitrary…

  4. A person has or does not have Constitutional rights based on his legal status. He does not lose these rights based on the type or severity of the crime of which he is accused. He cannot be stripped of these rights by the type of court in which he is tried. Someone who lacks constitutional rights will still get normal judicial due process in a trial and may call witnesses and be represented by a lawyer of his choice.

    While sloppy thinking may be endemic to the debate, one hopes the judge will sort things out. “Terrorists” have no more or fewer rights than bank robbers, but a non-citizen captured and held overseas and then tried for some sort of extraterritorial murder is not entitled to certain procedural rules (with regard to things that happened in foreign countries) that would apply to a resident accused of a murder in the US.

    One may believe that civilian courts would be more likely than military courts to make the mistake of attributing Constitutional rights to someone who is not entitled to them. This is a valid criticism of some judges, but it is not a problem with the court system. On the other hand, military judges know they are dealing with enemy soldiers captured outside the US and are unlikely to make certain mistakes.

    KSM is entitled to all the protections of due process, but he is not a citizen or legal resident and is not entitled to constitutional protections. For example, when papers and computer disks were seized by the Pakistani police during his arrest there was no US search warrant because no US court had jurisdiction over Pakistan. Those papers  and files cannot be excluded, because the Fourth Amendment did not apply to his capture.

    Although statements made due to torture can be excluded, there is no requirement to read Miranda rights to someone who, at the time of capture, is not protected by the Fifth and Sixth Amendments. Judges should be smart enough to not exclude, for example, un-coerced statements made by enemy soldiers after capture, even though the same statements might be excluded if made by un-Mirandized citizens after a criminal arrest.

    There are judges who are smart enough to apply the law correctly, and some who are not. Unfortunately, the system does not have a procedure to guarantee that a trial like this is assigned to the most able judge.

  5. Query:  Assuming the 5th Amendment applied in a foreign combat environment, why would a POW be entitled to Miranda at all?  If the reason for Miranda is the inherently coercive environment associated with a custodial interrogation, would such an inherently coercive environment exist in the case of a POW who knows that Geneva conventions require only that he give his name, rank and serial number, and need not answer any other questions. Perhaps the grant of Geneva POW rights to captives (until otherwise established as not entitled by appropriate review) vitiates the need for Miranda warnings because the reason for the rule does not exist:  POW status is inherently NON-coercive  …Perhaps they could be advised of their Geneva rights and then questioned, or the knowledge thereof could be lawfully presumed just as is combatant status until shown otherwise. 

    Moreover, if no crime is suspected and the initial interrogation is for intelligence purposes, then perhaps no warning would be required (it wouldn’t be under UCMJ Article 31 jurisprudence, I think), and then only if the interrogation for intel produces information in response leading the interrogator to begin to suspect a crime would a Miranda warning be needed (if it is at all under the Geneva non-inherently non-coercive argument I posit).

    Just a thought.

  6. Oops, I just realized that I wrote “non-citizen national.”  I have no idea why I wrote that.  What I meant was “non-citizen individual.”

  7. I think it’s perfectly reasonable to limit Constitutional rights to US citizens. I also think that there are several good reasons to prefer military commissions, and the limited procedural rights that accompany them, to civilian criminal trials. Much of the evidence may involve classified intelligence matters that would pose a national security risk if disclosed. Hearsay protections may need to be limited as a result. The problem is that Yoo overstates these pragmatic reasons for military commissions and uses them to argue for his own vision of executive power. It’s unfortunate that the argument is now about what rights the detainees deserve, as opposed to what rights they actually should have in order for them to be prosecuted effectively without compromising intelligence.

  8. ‘in order for them to be prosecuted effectively without compromising intelligence’ – ‘in order for them to be prosecuted effectively without compromising their fundamental rights as presumed innocents with due regard to the need to ensure essential State interests’, I assume you meant. It is funny how essential human rights are often forgotten when dealing with certain types of persons and crimes…

  9. I believe that it is essential to have faith in the U.S. Court system.  In keeping faith in our system, one must believe that just outcomes will result, regardless of who is being tried.  Therefore, I fully believe that one’s rights cannot be compromised on the basis of what types of crimes they commit.  We cannot not grant procedural rights to one person and not another; absolute judicial discretion in this sense is quite problematic, and even dangerous.  One may argue that a non-citizen or resident does not deserve U.S. constitutional rights; however, it is important not to forget that the U.S., as a vital member of the international community has a duty to recognize the human rights of all individuals. Therefore, those being tried in our court system have legal rights regardless of whether we think they deserve our country’s constitutional rights.  If individuals are not extended basic due process rights, the U.S. might run into a general violation of international human rights law.  If the U.S’s own citizens don’t have faith in our judicial system, who will?  Throughout this whole debate, we have to keep our international reputation and credibility in mind.  If we want our U.S. citizens’ rights to be fully protected abroad, we have to consider this idea of reciprocity.

  10. I agree with Tommy, Senator Graham’s position is simply indefensible. The acts of terrorism at issue were heinous and morally reprehensible crimes, no one disputes that. However, to argue that any person who commits a crime that some people deem it as reprehensible is a slippery slope that the United States should not go down, today we change the process for terrorists because their crimes are morally reprehensible, what will these people decide is morally repugnant tomorrow? Questions of morality and reprehensibility are best left for trial, lets not tamper with the procedural protections of our courts out of fear.

Trackbacks and Pingbacks

  1. […] are so heinous that the perpetrators forfeit their rights.  As Tommy Crocker of Opinio Juris writes: This thought appears in a statement attributed to Sen Lindsey Graham, who sought (and failed) to […]

  2. […] to provide a space  apart entirely from political passions, as Tommy Crocker suggests in excellent post at Opinio Juris on Khalid  Sheikh Mohammed and the relationship between moral desert and […]