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Technically the fifth amendment was abandoned the Minute the US began imprisoning/killing people without trials. the drone wars are a great example of this. Th

Technically the fifth amendment was abandoned the Minute the US began imprisoning/killing people without trials. the drone wars are a great example of this. The fifth amendment uses the word "PERSON" not citizen. So in some sense this is just a continuation of the same - what is applicable to a "military age male" in Afghanistan is now applicable to a American Joe Q Public. This is an excellent wake-up call - do not gut American values to (notionally) protect the American People.

rayiner 14y ago
Nobody thinks the framers intended the 5th amendment to cover military age males in Afghanistan. That's just ridiculous.
- gknoy 14y ago
  When I read the text of the amendment, I think that they very much would have considered it to cover everyone. "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;" Our declaration of independence says that "We hold these truths to be self-evident, that all men are created equal" -- ALL men. Not just American men. I think those two, taken together, imply that the founders would have meant for the 5th amendment to cover American men, Englishmen, Frenchmen, and natives of foreign lands which they had not heard of yet.
  - cynicalkane 14y ago
    People do this thing where they say the Constitution plainly says X and then quote it where it says Y. What do you think the clause except in cases arising in the land or naval forces means?
    - georgemcbay 14y ago
      If you want to be completely literal and pedantic about it, drones are neither land nor naval forces.
      - rprasad 14y ago
        If you want to be completely literal and pedantic about it, "in the land and naval forces" refers to persons serving in the Army, Navy, and Marines (or their historical equivalents).
  - rayiner 14y ago
    You can't say with a straight face that the founders thought Constitutional protections should apply to everyone, even people abroad, when they declined to extend any protection to black men living in America. Or Indians. Or women.
    - allwein 14y ago
      Except that you can say it with a straight face. The fact that they had to explicitly call out exceptions for Indians and Blacks means that they felt that they would have otherwise fallen under the general classification of "men".
      - rayiner 14y ago
        They're not worded as exceptions. They're worded more like "this is what applies to men; as for the blacks this is what applies."
  - cromulent 14y ago
    It can't have been that self-evident that all men were equal when they wrote the Constitution. Indians didn't count and slaves only counted for 3/5 of a person. "according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." That specifically states that not all men are equal.
    - rayiner 14y ago
      Finally something sensical. If you want to get an idea of what protections the founders thought should apply to non-Americans outside U.S. soil, you need look no further than see how they handled the American Indians. Hint: they didn't bring Indian chiefs to Philadelphia for trials in American courts.
  - dctoedt 14y ago
    1. Assume for the sake of argument that imprisonment of suspected terrorists without trial violates the Fifth Amendment. The question then becomes: What must the government do about the violation --- that is, what is the prisoner's remedy? A) The canonical remedy for unlawful imprisonment is the writ of habeas corpus [1]. When a court issues "the Great Writ," it orders the prisoner's jailer(s) to bring the prisoner to court and, by implication, to release the prisoner if the court so directs. B) Article 1 of the Constitution expressly empowers Congress to suspend habeas corpus --- in other words, to strip from courts the authority to order the release of prisoners --- "when in Cases of Rebellion or Invasion the public Safety may require it." [2] Nothing in the Fifth Amendment alters this congressional power of suspension. C) It might be argued that in enacting the Patriot Act, Congress partially suspended habeas corpus in response to the "Invasion" we call 9/11. D) The courts try to interpret the various parts of the Constitution to be in harmony with one another if at all possible. E) So, "properly" interpreted, the Fifth Amendment might not stand in the way of imprisonment without trial in a case covered by a congressional suspension of habeas corpus. (The breadth of this possibility troubles me, incidentally; also, I'm far from a constitutional scholar.) ------------ 2. As to whether the Constitution prohibits killing an enemy combatant in wartime without individualized due process in each case: That'd be a really, really tough sell, not least because if that principle had been followed, the U.S. would not long have survived as an independent state. [1] http://en.wikipedia.org/wiki/Habeas_corpus http://en.wikipedia.org/wiki/Habeas_corpus [2] U.S. Const., art. 1, sec. 9, http://www.usconstitution.net/xconst_A1Sec9.html http://www.usconstitution.net/xconst_A1Sec9.html
    - bobbydavid 14y ago
      Not that I necessarily agree with you, but this is a great comment.
    - neumann_alfred 14y ago
      "It might be argued that in enacting the Patriot Act, Congress partially suspended habeas corpus in response to the "Invasion" we call 9/11." Even if someone did argue for that, which you didn't do, they would argue that 9/11 was an "invasion", not an invasion. See how that works? Also, the perpetrators were from Saudi Arabia mostly, yet Iraq was attacked, talking about how he's an evil man which had fuck all to do with him attacking the US. That's kinda where your whole post falls down like a house of cards. Remember Powell before the UN, with a dry throat and sweating a lot, showing his slides about what might be mobile WMD labs? Heh. No, to anyone not accomplice to it, or suffering from Stockholm Syndrome, this is rather clear. And it's old. Americans have been warning Americans for a century now. The military industrial complex doesn't do this since lately. As to whether the Constitution prohibits killing an enemy combatant in wartime without individualized due process in each case: That'd be a really, really tough sell If you simply define "military age males" who died in drone attacks as those, then they're not really enemy combatants, they're "enemy combatants", which raises the same issue as the "invasion" stuff does. Also, simply attacking people and calling it war doesn't make it "wartime". Just saying "it's war!" doesnt make it war.
  - Aloisius 14y ago
    Just a note, the declaration of independence is not part of the law in the US. In fact, there is little overlap between the signers of the declaration of independence and the framers of the Constitution.
  - anigbrowl 14y ago
    If we're going to be pedantic about it, it extends no protection at all to women.
- fleitz 14y ago
  No kidding, the farmers (who grew up in the heartland of america) of the constitution knew that only god fearing american citizens were worthy of the rights specifically enumerated to them by the state via the bill of rights. I don't know where people get the idea that these rights extend to everyone, or that there may be more rights than specifically listed in the bill of rights.
  - drcube 14y ago
    I can't tell if you're joking. Please tell me you are.
    - sillysaurus 14y ago
      He's joking.
      - charonn0 14y ago
        Oh, thank god...
    - fleitz 14y ago
      I thought "farmers of the constitution (who grew up in the heartland)" was a dead giveaway.
      - mylittlepony 14y ago
        It wouldn't be the first time I read something like this, even in HN. You got me good.
  - rayiner 14y ago
    Leave aside what you learned in high school about the Constitution, and look at the document and the actual history. At the time of the founding, and for more than 100 years after the founding, the Bill of Rights didn't even prevent North Carolina from detaining an American Citizen without trial. And you're seriously telling me that the founders would have contemplated applying Constitutional protections to Afghans in Afghanistan?
- Zak 14y ago
  It seems to me that they would have construed it to allow taking enemy prisoners of war during a war. Wars, at that time were declared by Congress and has clearly defined victory conditions. Prisoners were expected to be repatriated at the end of the war. Now we're engaged in hostilities not declared as a war and without clearly defined victory conditions. If enemies in that conflict are treated as POWs, their detention is indefinite. I'm pretty sure the Constitution's authors did not intend anything of the sort.
- duaneb 14y ago
  Well, perhaps the framers didn't write a perfect document. I certainly think that they deserve the same rights I have.
  - deleted 14y ago
    [deleted]
- ataggart 14y ago
  Why do you choose to read the 5th amendment as granting protections to a class of people, instead of reading it as a declaration of prohibitions to government action?
  - rayiner 14y ago
    I'm reading it as a prohibition of government action with respect to a certain class of people. Why with respect to a certain class of people rather than everyone in the world? First, because the text suggests as much ("No person..."). Second, because that's how it's always been interpreted. You can trace much of the language of the fifth amendment back to the Magna Carta, which was an enumeration of limitations on the power of the English King with respect to the free men of England. More generally, at the time of the founding it was taken for granted that the Constitution only applied to American soil. Most of the extra-territorial application of the Constitution has been the result of subsequent legal development.
    - ataggart 14y ago
      >Why with respect to a certain class of people rather than everyone in the world? First, because the text suggests as much ("No person..."). I'm not clear on how "No person..." selects some subset of people with whom such government prohibitions apply. >at the time of the founding it was taken for granted that the Constitution only applied to American soil. The Constitution makes no mention of geography. Instead it is entirely a collection of MAYs, SHALLs, and SHALL NOTs directed at the government. >Most of the extra-territorial application of the Constitution... ...is predicated on notions of geographical distinction wholly absent from the Constitution.
      - rayiner 14y ago
        The Constitution doesn't mention geography, that's true. That could either be because the framers intended it to apply to everyone everywhere, or because they thought it was obvious it would only apply to Americans in America. Luckily, the Constitution is not a disembodied bit of text. We have copious context to use to evaluate the significance of the lack of geographical distinctions in the Constitution. The English legal tradition, which the Constitution is a product of, is highly territorial. English law applied to Englishmen in England. Thus, it is reasonable to conclude that American law, including the Constitution, was intended to apply to Americans in America. Scalia's dissent in Boumediene has a good discussion of the application of Constitutional rights to non-citizens: http://www.law.cornell.edu/supct/html/06-1195.ZD1.html http://www.law.cornell.edu/supct/html/06-1195.ZD1.html. I'd skip to Section II to get past the political rant.
wissler 14y ago
"He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."--Thomas Paine
deleted 14y ago
[deleted]
rprasad 14y ago
The Bill of Rights, when originally written, was not intended to apply to all men. Slaves, for example, were not entitled to any of these protections. The Amendments abolishing slavery and extending the BOR to the states does not contain language extending the BOR to those beyond the formal legal jurisdiction of the U.S.
- ataggart 14y ago
  It's not clear to me how slaves not being considered part of "the people" implies the BOR's governmental prohibitions only apply to acts on U.S. soil.
  - pdonis 14y ago
    The Constitution itself explicitly says that it's for the United States of America. That applies to the whole document, including the Amendments.
    - michaelfeathers 14y ago
      Sometimes people say that we don't have to respect people's rights if they aren't Americans. I think that we should respect their rights because we are Americans.
      - rayiner 14y ago
        A "right" is a legal rule applicable between two people within a framework of law. Foreigners don't have any "rights" as against the American people not because they're bad or we're more important or anything like that, but because they are not part of a common legal framework with us.
        michaelfeathers 14y ago
        No, that's just one definition of rights. There are many. I was speaking from the natural rights perspective.
tsotha 14y ago
The constitution was never intended to apply outside the boundaries of US territory. The idea that this or that amendment prevents the US military from detaining a goatherd on the other side of the world is a wholly modern (minority) interpretation that's at odds with reality. It would leave the US completely unable to conduct a war.
- randallsquared 14y ago
  The constitution appears to have been intended to apply to the US Government, whatever its actions. It even includes a loophole for conducting a war: just actually declare war. These days that's unfashionable, of course.
enoch_r 14y ago
Obama already authorized a targeted killing of an American citizen (Anwar al-Aulaqi) and his Denver-born, US-citizen son. Both of those killings were carried out via drone in late 2011.
- rayiner 14y ago
  Yes, this one is legally questionable, because at least arguably the Constitution protects U.S. Citizens not on U.S. soil. That doesn't necessarily mean what Obama did was illegal. The 5th amendment says: "...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..." You might be able to fly a drone through the "or public danger" loophole. Also, the 5th amendment calls for "due process" but that doesn't mean a trial. Due process is a fluid concept that depends on the circumstances. Al Awalki might have been entitled to due process, but what process is "due" in a situation where someone leaves the county to take up arms against it? It's not obvious he didn't get all the process he was due.
pekk 14y ago
Drone bombing has no different legal status from manned bombing.

rayiner 14y ago

Nobody thinks the framers intended the 5th amendment to cover military age males in Afghanistan. That's just ridiculous.

gknoy 14y ago
When I read the text of the amendment, I think that they very much would have considered it to cover everyone. "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;" Our declaration of independence says that "We hold these truths to be self-evident, that all men are created equal" -- ALL men. Not just American men. I think those two, taken together, imply that the founders would have meant for the 5th amendment to cover American men, Englishmen, Frenchmen, and natives of foreign lands which they had not heard of yet.
- cynicalkane 14y ago
  People do this thing where they say the Constitution plainly says X and then quote it where it says Y. What do you think the clause except in cases arising in the land or naval forces means?
  - georgemcbay 14y ago
    If you want to be completely literal and pedantic about it, drones are neither land nor naval forces.
    - rprasad 14y ago
      If you want to be completely literal and pedantic about it, "in the land and naval forces" refers to persons serving in the Army, Navy, and Marines (or their historical equivalents).
- rayiner 14y ago
  You can't say with a straight face that the founders thought Constitutional protections should apply to everyone, even people abroad, when they declined to extend any protection to black men living in America. Or Indians. Or women.
  - allwein 14y ago
    Except that you can say it with a straight face. The fact that they had to explicitly call out exceptions for Indians and Blacks means that they felt that they would have otherwise fallen under the general classification of "men".
    - rayiner 14y ago
      They're not worded as exceptions. They're worded more like "this is what applies to men; as for the blacks this is what applies."
- cromulent 14y ago
  It can't have been that self-evident that all men were equal when they wrote the Constitution. Indians didn't count and slaves only counted for 3/5 of a person. "according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." That specifically states that not all men are equal.
  - rayiner 14y ago
    Finally something sensical. If you want to get an idea of what protections the founders thought should apply to non-Americans outside U.S. soil, you need look no further than see how they handled the American Indians. Hint: they didn't bring Indian chiefs to Philadelphia for trials in American courts.
- dctoedt 14y ago
  1. Assume for the sake of argument that imprisonment of suspected terrorists without trial violates the Fifth Amendment. The question then becomes: What must the government do about the violation --- that is, what is the prisoner's remedy? A) The canonical remedy for unlawful imprisonment is the writ of habeas corpus [1]. When a court issues "the Great Writ," it orders the prisoner's jailer(s) to bring the prisoner to court and, by implication, to release the prisoner if the court so directs. B) Article 1 of the Constitution expressly empowers Congress to suspend habeas corpus --- in other words, to strip from courts the authority to order the release of prisoners --- "when in Cases of Rebellion or Invasion the public Safety may require it." [2] Nothing in the Fifth Amendment alters this congressional power of suspension. C) It might be argued that in enacting the Patriot Act, Congress partially suspended habeas corpus in response to the "Invasion" we call 9/11. D) The courts try to interpret the various parts of the Constitution to be in harmony with one another if at all possible. E) So, "properly" interpreted, the Fifth Amendment might not stand in the way of imprisonment without trial in a case covered by a congressional suspension of habeas corpus. (The breadth of this possibility troubles me, incidentally; also, I'm far from a constitutional scholar.) ------------ 2. As to whether the Constitution prohibits killing an enemy combatant in wartime without individualized due process in each case: That'd be a really, really tough sell, not least because if that principle had been followed, the U.S. would not long have survived as an independent state. [1] http://en.wikipedia.org/wiki/Habeas_corpus http://en.wikipedia.org/wiki/Habeas_corpus [2] U.S. Const., art. 1, sec. 9, http://www.usconstitution.net/xconst_A1Sec9.html http://www.usconstitution.net/xconst_A1Sec9.html
  - bobbydavid 14y ago
    Not that I necessarily agree with you, but this is a great comment.
  - neumann_alfred 14y ago
    "It might be argued that in enacting the Patriot Act, Congress partially suspended habeas corpus in response to the "Invasion" we call 9/11." Even if someone did argue for that, which you didn't do, they would argue that 9/11 was an "invasion", not an invasion. See how that works? Also, the perpetrators were from Saudi Arabia mostly, yet Iraq was attacked, talking about how he's an evil man which had fuck all to do with him attacking the US. That's kinda where your whole post falls down like a house of cards. Remember Powell before the UN, with a dry throat and sweating a lot, showing his slides about what might be mobile WMD labs? Heh. No, to anyone not accomplice to it, or suffering from Stockholm Syndrome, this is rather clear. And it's old. Americans have been warning Americans for a century now. The military industrial complex doesn't do this since lately. As to whether the Constitution prohibits killing an enemy combatant in wartime without individualized due process in each case: That'd be a really, really tough sell If you simply define "military age males" who died in drone attacks as those, then they're not really enemy combatants, they're "enemy combatants", which raises the same issue as the "invasion" stuff does. Also, simply attacking people and calling it war doesn't make it "wartime". Just saying "it's war!" doesnt make it war.
- Aloisius 14y ago
  Just a note, the declaration of independence is not part of the law in the US. In fact, there is little overlap between the signers of the declaration of independence and the framers of the Constitution.
- anigbrowl 14y ago
  If we're going to be pedantic about it, it extends no protection at all to women.
fleitz 14y ago
No kidding, the farmers (who grew up in the heartland of america) of the constitution knew that only god fearing american citizens were worthy of the rights specifically enumerated to them by the state via the bill of rights. I don't know where people get the idea that these rights extend to everyone, or that there may be more rights than specifically listed in the bill of rights.
- drcube 14y ago
  I can't tell if you're joking. Please tell me you are.
  - sillysaurus 14y ago
    He's joking.
    - charonn0 14y ago
      Oh, thank god...
  - fleitz 14y ago
    I thought "farmers of the constitution (who grew up in the heartland)" was a dead giveaway.
    - mylittlepony 14y ago
      It wouldn't be the first time I read something like this, even in HN. You got me good.
- rayiner 14y ago
  Leave aside what you learned in high school about the Constitution, and look at the document and the actual history. At the time of the founding, and for more than 100 years after the founding, the Bill of Rights didn't even prevent North Carolina from detaining an American Citizen without trial. And you're seriously telling me that the founders would have contemplated applying Constitutional protections to Afghans in Afghanistan?
Zak 14y ago
It seems to me that they would have construed it to allow taking enemy prisoners of war during a war. Wars, at that time were declared by Congress and has clearly defined victory conditions. Prisoners were expected to be repatriated at the end of the war. Now we're engaged in hostilities not declared as a war and without clearly defined victory conditions. If enemies in that conflict are treated as POWs, their detention is indefinite. I'm pretty sure the Constitution's authors did not intend anything of the sort.
duaneb 14y ago
Well, perhaps the framers didn't write a perfect document. I certainly think that they deserve the same rights I have.
- deleted 14y ago
  [deleted]
ataggart 14y ago
Why do you choose to read the 5th amendment as granting protections to a class of people, instead of reading it as a declaration of prohibitions to government action?
- rayiner 14y ago
  I'm reading it as a prohibition of government action with respect to a certain class of people. Why with respect to a certain class of people rather than everyone in the world? First, because the text suggests as much ("No person..."). Second, because that's how it's always been interpreted. You can trace much of the language of the fifth amendment back to the Magna Carta, which was an enumeration of limitations on the power of the English King with respect to the free men of England. More generally, at the time of the founding it was taken for granted that the Constitution only applied to American soil. Most of the extra-territorial application of the Constitution has been the result of subsequent legal development.
  - ataggart 14y ago
    >Why with respect to a certain class of people rather than everyone in the world? First, because the text suggests as much ("No person..."). I'm not clear on how "No person..." selects some subset of people with whom such government prohibitions apply. >at the time of the founding it was taken for granted that the Constitution only applied to American soil. The Constitution makes no mention of geography. Instead it is entirely a collection of MAYs, SHALLs, and SHALL NOTs directed at the government. >Most of the extra-territorial application of the Constitution... ...is predicated on notions of geographical distinction wholly absent from the Constitution.
    - rayiner 14y ago
      The Constitution doesn't mention geography, that's true. That could either be because the framers intended it to apply to everyone everywhere, or because they thought it was obvious it would only apply to Americans in America. Luckily, the Constitution is not a disembodied bit of text. We have copious context to use to evaluate the significance of the lack of geographical distinctions in the Constitution. The English legal tradition, which the Constitution is a product of, is highly territorial. English law applied to Englishmen in England. Thus, it is reasonable to conclude that American law, including the Constitution, was intended to apply to Americans in America. Scalia's dissent in Boumediene has a good discussion of the application of Constitutional rights to non-citizens: http://www.law.cornell.edu/supct/html/06-1195.ZD1.html http://www.law.cornell.edu/supct/html/06-1195.ZD1.html. I'd skip to Section II to get past the political rant.

wissler 14y ago

"He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."--Thomas Paine

deleted 14y ago

[deleted]

rprasad 14y ago

The Bill of Rights, when originally written, was not intended to apply to all men. Slaves, for example, were not entitled to any of these protections. The Amendments abolishing slavery and extending the BOR to the states does not contain language extending the BOR to those beyond the formal legal jurisdiction of the U.S.

ataggart 14y ago
It's not clear to me how slaves not being considered part of "the people" implies the BOR's governmental prohibitions only apply to acts on U.S. soil.
- pdonis 14y ago
  The Constitution itself explicitly says that it's for the United States of America. That applies to the whole document, including the Amendments.
  - michaelfeathers 14y ago
    Sometimes people say that we don't have to respect people's rights if they aren't Americans. I think that we should respect their rights because we are Americans.
    - rayiner 14y ago
      A "right" is a legal rule applicable between two people within a framework of law. Foreigners don't have any "rights" as against the American people not because they're bad or we're more important or anything like that, but because they are not part of a common legal framework with us.
      - michaelfeathers 14y ago
        No, that's just one definition of rights. There are many. I was speaking from the natural rights perspective.

tsotha 14y ago

The constitution was never intended to apply outside the boundaries of US territory. The idea that this or that amendment prevents the US military from detaining a goatherd on the other side of the world is a wholly modern (minority) interpretation that's at odds with reality. It would leave the US completely unable to conduct a war.

randallsquared 14y ago
The constitution appears to have been intended to apply to the US Government, whatever its actions. It even includes a loophole for conducting a war: just actually declare war. These days that's unfashionable, of course.

enoch_r 14y ago

Obama already authorized a targeted killing of an American citizen (Anwar al-Aulaqi) and his Denver-born, US-citizen son. Both of those killings were carried out via drone in late 2011.

rayiner 14y ago
Yes, this one is legally questionable, because at least arguably the Constitution protects U.S. Citizens not on U.S. soil. That doesn't necessarily mean what Obama did was illegal. The 5th amendment says: "...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..." You might be able to fly a drone through the "or public danger" loophole. Also, the 5th amendment calls for "due process" but that doesn't mean a trial. Due process is a fluid concept that depends on the circumstances. Al Awalki might have been entitled to due process, but what process is "due" in a situation where someone leaves the county to take up arms against it? It's not obvious he didn't get all the process he was due.

pekk 14y ago

Drone bombing has no different legal status from manned bombing.