An interesting and revealing exchange regarding rights and the Constitution took place recently between defense attorney Bruce Fein, who spoke at FFF’s 2008 conference “Restoring the Republic: Foreign Policy and Civil Liberties ,” and Guantanamo military prosecutor Edward White. Fein is representing a Yemeni citizen named Ali al-Bahul in a Gitmo military-tribunal proceeding in which the U.S. military is prosecuting al-Bahul for allegedly providing military support of terrorism by creating a video in support of al-Qaeda.
The exchange between the two attorneys took place in the context of legal arguments over whether the production of the videotape was protected by the First Amendment’s guarantee of free speech. Fein argued that it was, while White argued to the contrary.
Whether the production of such a videotape constitutes a crime or an exercise of free speech is a legal issue that ultimately will have to be decided by the courts. That’s not a point I wish to address in this commentary.
What I found interesting and revealing was a comment by military prosecutor White. He stated that constitutional rights are reserved for U.S. citizens.
While such a sentiment is undoubtedly common within the U.S. military and, indeed, in conservative circles, it is both ridiculous and false.
What White fails to understand is that the Constitution doesn’t give anyone, including Americans, any rights, nor does it purport to. Instead, the purpose of the document is to prohibit the federal government, including the U.S. military, from infringing upon or interfering with people’s preexisting rights.
In other words, people’s rights don’t come from government or from documents that bring government into existence. They come from nature and God. They exist independently of government and the Constitution. That is, even if there were no federal government and no Constitution, people would still have their natural, God-given rights. Such rights preexist government.
So, an obvious question arises, especially in the context of White’s assertion to the court: Are only Americans born with natural or God-given rights? The answer was provided by Thomas Jefferson in the Declaration of Independence, a document that should be read in conjunction with the Constitution. He observed that all men were endowed with such rights. Not just Americans. Not just Chinese. Not just Englishmen. Every individual is endowed at birth with fundamental, inherent, natural, God-given rights.
Some of such rights are enumerated in the Bill of Rights, but the rights enumerated there aren’t exhaustive. That’s what the Ninth Amendment is all about — it points out that no one should assume that just because some important rights are listed in preceding eight amendments doesn’t mean that people don’t have many more natural, God-given rights.
But a point bears repeating here: Note carefully the specific language, for example, of the First and Second Amendments. Notice that the language does not give people the rights of free speech, freedom of the press, freedom of religion, freedom of assembly, or the right to keep and bear arms. Instead, the language prohibits the federal government from infringing upon or violating such preexisting, natural, God-given rights.
Thus, prosecutor White is wrong. Everyone, not just Americans, is born with fundamental rights, including those enumerated in the First and Second Amendments.
The question then arises: Does the Constitution authorize the federal government to infringe upon or violate the rights of foreigners. It does not. Since rights are universal in nature and adhere to all men, the Framers recognized that it would be illegitimate to grant the federal government the power to infringe upon or violate anyone’s rights.
Of course, it’s not surprising that military prosecutor White fails to appreciate these principles of freedom and constitutional government. After all, let’s not forget why the U.S. military set up its prison camp and alternative “judicial” system in Cuba rather than in the United States. It did so in the hope that its camp and system would be a Constitution-free zone, one in which the U.S. federal courts could operate free and clear of the Bill of Rights that U.S. military personnel take an oath to support and defend. Fortunately, the U.S. Supreme Court put the quietus to that hope.