Bill of Rights and Limitations

Last week, the attorney who represented several Guantanamo detainees, Marc Falkoff, was scheduled to speak at McHenry County College. The talk was planned to center around the circumstances of many detainees’ arrests, their innocence/guilt, their treatment and a collection of poetry written during their often extended stays (Poems from Guantanamo – The Detainees Speak). That last part sounds a bit too hands-held-round-a-warm-fire-Kumbaya for me, but he’s entitled to freedom of the press just as much as the next guy.

Mr. Falkoff is a professor at Northern Illinois University. In addition, he has represented detainees since 2004. In a recent editorial he wrote for the Northwest Herald, he says he “went to court for a dozen men who had been held for years without charge or trial.” Further, he states, “According to the military’s own records, 86 percent of the men were picked up by Pakistani security forces at the Pakistan border.”

One of the common arguments for perpetual detainment and avoidance of Constitutional precedents is the capture of the current detainees. We are repeatedly told, through the media, government officials and supposedly-in-the-know supporters of Gitmo and similar camps that the current detainees were captured “on the battlefield.” Their capture, rightly, changes the jurisdiction of the hearings. Military criminals, according to the Fifth Amendment, can be held without indictment.

Things become significantly sketchier when we consider that, as Falkoff states, 86 percent of those captured were originally detained by local police and subsequently handed over to the U.S. military. These offenses may include crossing the Afghan/Pakistani border without proper or incomplete documentation; raids on suspected safe-houses by foreign officials; arrest because of other countries’ terrorism classifications; or because they wore the wrong watch. In short, very few of the Gitmo detainees were actually picked up “on the battlefield” by the U.S. military.

The unfortunate-yet-prevailing notion is that because they are suspected terrorists-”enemy combatants,” a nebulous super-class created to solve just this problem-they are not entitled to typical Constitutional protections. The justification of this lies in the misconceptions of the Constitution fostered in the Postbellum Age.

233 years ago, had you questioned the Founders on the intent of the Constitution and subsequent Bill of Rights, the answer would have been quite simple. Both founding documents restrain the Federal government. Without this restraint, the Founders believed, the Federal government would quickly become an overbearing, power-hungry autocracy that delegates rights to individuals living under its rule.

Instead, our modern concept involves a frenetic quick-step as the Federal government dances around its limitations. Rights have been transformed from a limitation on government to an entitlement of the people. Semantics? Some would argue that’s all this distinction is, since the Federal government still “protects” our freedoms. As long as they’re looking out for Number 1-that would be us, the “in” group of citizens-the Federal government can do as it pleases to the “out” group, or everyone else on the face of the planet.

I’ll get straight to the point. Amendments 5, 6, 7 and 8 do not deal with U.S. citizens. None of the “rights” outlined do. These Amendments discuss how the Federal government must conduct itself in all criminal and civil prosecutions. In no case may the Federal government deprive someone of life, liberty or property; a speedy and public trial; a jury; information on the nature and purpose of detainment; the ability to face their accusers; the ability to bring forth supporting witnesses; a lawyer; humane treatment; and the ability to refuse to testify against onesself.

We do not have the “right to free speech” because our government allows us such a right. We have told our government that it may not prevent us from speaking. Likewise, we do not have the “right to a speedy and public trial” because our government gives us this luxury. The Federal government may not conduct a trial that is not speedy and public.

The Federal government doesn’t get a pass because the people being tried are not U.S. citizens. Our government must work within its limitations, regardless of the citizenship of the person involved. It is required to try a Mexican citizen in the same way it tries a U.S. citizen. If you commit a crime under U.S. law and are taken into U.S. custody, you are entitled to protections by U.S. laws. It may not discriminate and it may not make exceptions.