Speaking on the surveillance of Muslims, leading liberal constitutional professor Alan Dershowitz declared, “Criminals should have more rights than law-abiding citizens.” The professor’s statement is wrong, and it misses the more relevant point regarding the war on Islamic terrorism.
“It’s criminals who need rights,” Dershowitz contends. “Nobody likes criminals. Legislatures never pass laws favorable to criminals, so they need constitutional rights, just like people who need First Amendment rights are the most obnoxious people with the worst laws.
That statement that criminals should have more rights that the law-abiding is incorrect in at least two regards. First, some constitutional rights like free speech and the free exercise of religion are rights that criminals enjoy on equal terms with non-criminals. And second, certain other rights are political rights that the Constitution only secures for law-abiding citizens, such as the right to vote or the Second Amendment right to own a gun.
But while some persons have greater need of certain rights than others—like criminal suspects having more uses for criminal-procedural rights than someone who never gets arrested—both groups have the same rights. A person who owns a gun has the same Second Amendment rights as a person who owns no guns; one person exercises his rights, and the other does not.
Perhaps Dershowitz overstated his point deliberately to spark controversy and spread his message. But the truth remains: The Constitution ensures certain rights to all criminal suspects, whether they are citizens or not. While certain rights belong only to citizens, the Constitution specifies that the criminal procedural rights of the Fourth, Fifth, Sixth, and Eighth Amendment’s extend to all “persons” subject to federal power, not just citizens.
But Dershowitz’s argument on this point does not accurately frame the issue of fighting Islamic terrorism, because terrorists are different from criminals. The Constitution grants far broader power to the military and America’s national-security forces when fighting wartime enemies than it does to criminal defendants in America’s domestic criminal-justice system.
In such a conflict, foreigners do not have the same rights as citizens. Moreover, enemy combatants on foreign soil have no habeas-corpus rights against federal detention, while under current Supreme Court precedent it’s clear that combatants can claim habeas rights on American soil. (Most conservatives disagree with those recent precedents, which have been handed down during the past decade.)
The political Left’s failure to make this distinction is because many liberals treat the war on terror as a law enforcement matter, rather than a war. Constitutional guarantees for defendants, such as the presumption of innocence, the right to a jury trial for serious crimes, and the right not to be convicted unless the government proves every element of the crime beyond a reasonable doubt, are to limit the powers of government over the daily lives of the American people.
It is a distinction predicated on American exceptionalism. The Constitution makes the United States a special place for people who live here under its laws.
So a Muslim non-citizen living in the United States who engages in an act of theft or reckless driving has equal rights—no more, no less—than a native-born American of any other faith. But a jihadi committing an act of terror on American citizens is an enemy combatant, not a criminal. The Constitution treats such terrorists quite differently.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.