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Wednesday, April 07, 2010

Does anyone actually read the US Constitution ?

Spencer Ackerman pretends to quote it with this headline

"No American Citizen Can Be Deprived Of Life, Liberty Or Property Without Due Process Of Law"

He comments "But if citizenship means anything, it means that a citizen can’t be killed because the government uses secret evidence to say he or she is an intolerable threat."

If the plain text of the constitution means anything, this is equally true of non citizens. Ackerman is pretending to quote the fifth amendment.

Amendment 5
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in actual service in time
of War or public danger; nor shall any person be subject for the same offense
to be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law
; nor shall private property be
taken for public use, without just compensation.

which implies "No person shall be ... deprived of life ... without due process of law"

The right to not be killed without a trial is guaranteed to non citizens too. I mean which word in "no person" didn't Mr Ackerman understand ?

What gave him the idea that the bill of rights lists rights of US citizens ? Has he ever read the document ?


The US Supreme court clearly agrees that Obama has the authority to order the US military to try to kill Osama Bin Laden. How can this be reconciled with the text of the fifth amendment (my wife who is Italian asks) ? It is very simple. Based on nothing at all and certainly nothing in the text of the constitution, the Supreme Court has decided that the US Constitution only has force within the USA. Hence the fierce debate over whether Guantanamo is part of the USA. Thus the US government is perfectly free to kill people, including US citizens, abroad. Living in Italy, I don't like this (and if someone tells me that The Italian Constitution and the Italian Republic will protect me, I will laugh in their face and say no problem, the tooth fairy has already guaranteed my safety).

The only relevant point is that Obama's order to kill Anwar al-Awlaki on sight raises no new constitutional issues. US citizenship is totally irrelevant to the question of whether the President has the authority to off you. According to the nonsensical bad faith reading by the Supreme court, the only thing that matters is where you are.

Arrivederci in the US government hunting preserve.

So does the 5th amendment ban war ? In war people are killed and others are taken prisoner without due process of law. To me the answer is clear -- the 5th amendment obviously forbids war.

Now some might note that the constitution explicitly grants congress the authority
"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning
Captures on Land and Water;"

Furthermore it declares that
"The President shall be Commander in Chief of the Army and Navy of the United
States, and of the Militia of the several States, when called into the actual
Service of the United States;"

Also it declares that "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due."


"No capitation, or other direct, Tax shall be laid, unless in Proportion to the
Census or Enumeration herein before directed to be taken."

The last two provisions were repealed, cancelled, nullified and rendered mere ink on parchment by the thirteenth and sixteenth amendments respectively. Similarly, anyone with basic reading comprehension must agree that the provisions which formerly authorized the US to make war were repealed, cancelled, nullified and rendered mere ink on parchment when the fifth amendment was ratified.

Now I am not arguing that the US government should not have the authority to make war. I only note that it clearly does not have the authority to make war. I propose a 29th amendment partially repealing the fifth amendment (oh and repealing the 2nd and tenth while we're at it).

However, the text of the main body of the constitution is clearly not satisfactory for such a 29th amendment. It doesn't put any limit on public violence in time of war. I think it is necessary to make it clear that, in declaring war, congress establishes a war zone where normal restrictions are suspended. This will give constitutional standing to safe havens for our adversaries, so, I would expect the zone to be changed, typically expanded during the war. However, I think each expansion should require a bill in congress.

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