Tuesday, July 12, 2011

Legally Insane

It’s not as if you needed any further proof that some of the people we elect to the Senate, including those who get promoted to leadership positions, are idiots, I give you Sen. Mitch McConnell (R-KY), speaking on the rights of foreigners arrested as terrorists and the strength of the United States legal system:

“These are not American citizens. We just found with the Caylee Anthony case how difficult it is to get a conviction in a U.S. court,” McConnell told “Fox News Sunday.” “I don’t think a foreigner is entitled to all the protection in the Bill of Rights. They should not be in U.S. courts and before military commissions.”

Aside from the fact that using a highly-hyped and tabloided murder trial in Florida as the benchmark of jurisprudence is problematic to say the least, Mr. McConnell ignores a basic fact of law: you do not have to be a citizen of the United States to be entitled to the rights of the United States legal system. As Adam Serwer points out, it was decided over a century ago by the Supreme Court that all persons, regardless of citizen status, are entitled to the Bill of Rights:

Applying this reasoning to the fifth and sixth amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guarantied by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.

There’s one other aspect to this that apparently escaped Mr. McConnell’s attention while he was in law school: the legal system in the United States is weighted in favor of the defendant by design. It is supposed to be hard for the government to prove that you are guilty of a crime. The burden of proof is on them, not on the defendant, and the presumption of innocence is the key to preventing the government of rounding up everyone it doesn’t like and tossing them in jail. The Bill of Rights is written to protect the people, not the government.

It’s really easy to make terrorists the exception to the rule. For the last ten years, if not longer, we’ve been hearing the drumbeat of fear and loathing against anyone who might harbor an ill feeling towards us, either philosophically, politically, religiously, or for whatever personal reason they might have a gripe, especially if they are not white and Christian (although Timothy McVeigh and Eric Rudolph were). It’s easy to make the argument that non-citizens are not entitled to the Bill of Rights, and people who are in positions of power find it easy to make those arguments to bolster their own political ends. But what makes America an exceptional country, and what fools like Mr. McConnell don’t seem to appreciate, is that we are one of a very few nations that grants such rights to all people and has, for the most part, tried to live up to the simple idea of equal justice under the law. It has not always succeeded, and it has some spectacular and on-going failures to its shame, but at least we have made it more than just lip service.

It’s also ironic that a leading member of a political party that advocates smaller government and more freedom would come down on the side of deprivation of rights and less freedom, but then Mr. McConnell has never struck me as anyone who could understand, much less appreciate, irony.