What Does the Constitution Say About Detaining Americans, Whether in Wartime or Peacetime?

Senator Kirk answers:

I took the time, as we all should from time to time, serving in this body, to re-read the Constitution of the United States yesterday. The Constitution says quite clearly: ‘In the trial of all crimes — no exception — there shall be a jury, and the trial shall be held in the State where said crimes have been committed.’ Clearly, the Founding Fathers were talking about a civilian court, of which the U.S. person is brought before in its jurisdiction.

They talk about treason against the United States, including war in the United States. The Constitution says it “shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

The following sentence is instructive: No person — ‘No person,’ it says — ‘shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.’ I would say that pretty clearly, ‘open court’ is likely to be civilian court.

Further, the Constitution goes on, that when a person is charged with treason, a felony, or other crime, that person shall be ‘removed to the State having Jurisdiction of the Crime’ — once again contemplating civilian, state court and not the U.S. military. As everyone knows, we have amended the Constitution many times. The Fourth Amendment of the Constitution is instructive here. It says: ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures’ — including, by the way, the seizure of the person — ‘shall not be violated, and no Warrants shall issue, except upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’

Now, in section 1031(b)(2), I do not see the requirement for a civilian judge to issue a warrant. So it appears this legislation directly violates the Fourth Amendment of the Constitution with regard to those rights which are inalienable, according to the Declaration of Independence, and should be inviolate as your birthright as an American citizen.

Recall the Fifth Amendment, which says: ‘No person’ — by the way, remember, ‘no person’; there is not an exception here. ‘No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment,’ hear the words, ‘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’ — meaning there is a separate jurisdiction for U.S. citizens who are in the uniformed service of the United States. But unless you are in the service of the United States, you are one of those ‘no persons’ who shall be answerable for a ‘capital’ or ‘infamous crime,’ except on ‘indictment of a Grand Jury.’

The Sixth Amendment says: ‘In all criminal prosecutions’ — not some, not by exception, in all criminal prosecutions — ‘the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed’ … I go on to these because I regard all of these rights as inherent to U.S. citizens, granted to them by their birth in the United States.

H/T The Atlantic


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