How Long Until You Lose Your Constitutional Rights? 

In a May 4 interview with Meet the Press, President Trump was asked if he needs to uphold the US Constitution, to which he replied “I don’t know.”

Media around the world latched onto that comment as the focus of their coverage. While a simple yes would have been preferable in response and deed, it’s unsurprising that Trump opted for wiggle room. A fuller look at his comments reveal that he is framing his repressive measures at home as part of a continuation of the extrajudicial imperialistic police state festering ever since the launch of the “Global War on Terror.”

Let’s look more closely at Trump’s comments, what they herald, and place them in the context of the “war on terror,” which is fast approaching its quarter century birthday. Here is the relevant part of the interview from the NBC News transcript:

KRISTEN WELKER:

And this is the point, sir, about due process. The Constitution says every person, citizens and non-citizens, deserve due process. Why not push to have him come back, present all of that evidence in court, let a judge decide?

PRES. DONALD TRUMP:

Well, I’ll leave that to the lawyers, and I’ll leave that to the attorney general of the United States, because —

KRISTEN WELKER:

But do you agree —

PRES. DONALD TRUMP:

– they’re in it. You have to understand. I’m dealing with Russia and Ukraine. I’m dealing with China —

KRISTEN WELKER:

And we’re going to talk about that.

PRES. DONALD TRUMP:

I’m dealing with Iran. I’m dealing with Rwanda and the Congo who are fighting and we’re trying to get that one straightened out. And I think we have done that, did a great job. Nobody even talks about it, but I think we’re close to doing that. They’re looking like they’re going to maybe make a peace deal, which was — would be good. But I’m dealing with a lot of different things. I don’t know much about this gentleman other than I hear he’s an absolute not good person. And I have very capable legal people, John Sauer, as you know, and all top people. And I have to rely on that to interpret whatever is said by the Supreme Court. Now with that being said, I have tremendous respect for the Supreme Court. Look, three of the people are people I appointed.

KRISTEN WELKER:

Right.

PRES. DONALD TRUMP:

And I have great respect for the Supreme Court. And I would expect that the attorney general will be doing the right thing.

KRISTEN WELKER:

Your secretary of state says everyone who’s here, citizens and non-citizens, deserve due process. Do you agree, Mr. President?

PRES. DONALD TRUMP:

I don’t know. I’m not, I’m not a lawyer. I don’t know.

KRISTEN WELKER:

Well, the Fifth Amendment says as much. [1]

PRES. DONALD TRUMP:

I don’t know. It seems — it might say that, but if you’re talking about that, then we’d have to have a million or 2 million or 3 million trials. We have thousands of people that are some murderers and some drug dealers and some of the worst people on Earth.

KRISTEN WELKER:

But is —

PRES. DONALD TRUMP:

Some of the worst, most dangerous people on Earth. And I was elected to get them the hell out of here and the courts are holding me from doing it.

What do Trump’s responses tell us? He’s using imperial entanglements (I’m dealing with Russia, China, Iran, etc.) abroad to excuse draconian measures on the home front. And like his predecessors, he is leaning on clever lawyers in search of legal justifications for more executive power. In this case, he is saying trials are not necessary because someone (Trump? Bondi? Noem?) or something (AI?) has already declared certain individuals guilty.

In Trump’s telling, his duty to protect the homeland justifies taking the executive acting as judge, jury, and executioner. Backing up Trump’s claims in the NBC interview, his top adviser Stephen Miller told reporters Friday that the administration is “looking at” ways to end due process protections for unauthorized immigrants who are in the country.

Does such a rationale shred the Constitution? Undoubtedly. It’s also the same logic that has been at play going on 25 years of illegal wars, torture, rendition, enemy combatants, droning ‘terrorists’ (including US citizens), war crimes, etc.

What Trump’s comments suggest is that US imperial lawlessness, always trickling back home, is now coming ashore in waves.

If we take a birds-eye view of the progression from the global police state from Bush the Younger to today, what do we see?

Well, it started with the brutal rendition and torture of “terrorist” Muslims. Obama rained death from the skies and extra judicially whacked an American citizen (which got far less media attention than Trump’s wishy-washy comments on upholding the Constitution) Trump, not to be outdone, killed the eight-year-old US-born daughter of the American citizen who Obama droned. Again, not a lot of media attention, likely because they were Muslims “over there.”

Well, now it’s coming home. There are suddenly “terrorists” everywhere in the US. January 6 terrorists, student protestor terrorists, homegrown terrorists, immigrant terrorists, political opposition terrorists, Luigi Mangione terrorist (singular for now).

Under Trump, the dragnet is even widening to include those who aid immigrant “terrorists.”

The label is also proliferating abroad with non combatants from Gaza to Kashmir frequently labeled terrorists by the bombing party. The enemy combatants designation is also making a comeback—this time on US soil. From CNN:

The Trump administration has been examining whether it can label some suspected cartel and gang members inside the US as “enemy combatants” as a possible way to detain them more easily and limit their ability to challenge their imprisonment, according to multiple people with knowledge of the deliberations.

The “enemy combatant” designation could also be applied to suspected narco-terrorists outside the US, the people said, as a way to potentially give the US a justification to conduct lethal strikes against them.

Like so much with Trump, his comments on upholding the Constitution are being treated as some unique threat rather than a continuation of decades of decay.

Judges appointed by presidents from both parties are now warning that the erosion of rights for immigrants is a danger for everyone:

“If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?” wondered J. Harvie Wilkinson, a Ronald Reagan appointee to the Richmond-based 4th Circuit Court of Appeals.

That’s a great question, and one that some have been asking for the duration of the so-called War on Terror. It’s entirely likely things would be progressing in this direction regardless of who is currently occupying the oval office. Perhaps in different directions and likely with less attention but occurring nonetheless. That’s been the case for nearly a quarter century.

Is This What Obama Wanted to “Look Forward, Not Backwards,” To?

But treating Trump as the problem ignores the fact that these powers are not rolled back regardless of who is in office. Recall that then-candidate Obama was going to close Guantanamo, investigate CIA torture, and put an end to domestic spying. None of that happened. Instead, Obama casually admitted “we tortured some folks,” and we got the following. From the Modern War Institute:

The president of the United States had personally overseen a secret executive branch process leveraging the massive capabilities of the US intelligence community and military to extrajudicially kill an American citizen. The use of technologically advanced surveillance and targeting systems in the form of weaponized drones also lent weight to those who believed the killing was an assassination or even an execution.

From the so-called “Terror Tuesday” or “targeting Tuesday” meetings where President Obama personally approved targets for drone strikes to the drafting of the legal logic justifying the extrajudicial killing of an American citizen, the strike on al-Awlaki was the result of decision making within the executive branch. Completely absent from the proceedings was the judiciary, which acts as a crucial buffer and neutral arbiter between the citizen and the executive.

In its own defense, the Obama administration argued that due process was not the same thing as judicial process and presented the test that it used to justify the targeted killing. While some observers have emphasized the narrowness of the legal standard, it was crafted specifically to target al-Awlaki, therefore reinforcing just how discretionary this exercise of executive power was. Furthermore, it was conceived of and adjudged constitutionally sufficient by attorneys who had previously opposed executive overreach during the Bush administration.

The Obama administration’s legal test also suffered an internal contradiction by the standard of the administration’s own actions. The Obama administration claimed that capturing al-Awlaki was not feasible, and yet it risked American lives on the ground in Somalia, Libya, Pakistan, and yes, even Yemen in missions to capture or kill terrorists or rescue hostages. In the case of al-Awlaki, the Obama administration risked the Constitution in using unmanned machines to kill an American citizen from the safety of the skies.

Obama also whacked al-Awlaki’s 16-year-old American-born son, Abdulrahman, but the government claimed he was just “collateral damage” in a strike aiming to vaporize other people.

The same “look forward” dynamic between Bush and Obama played out between the Trump I and Biden administrations. Last year, the FBI admitted that during the first Trump administration it used the CIA and the National Security Agency (NSA) to spy on Americans without probable cause of a crime committed nor even suspicion of criminality. The CIA and NSA are forbidden from doing this, although it’s an open secret they do it anyways. But Trump I took it a step further, and what did Biden do? Here’s Andrew Napolitano:

What is startling is that the Trump F.B.I. actually reduced to writing its contempt for the Constitution that its employees have sworn to uphold, and the Biden F.B.I. acted as if nothing was wrong, and under the second Trump administration, nothing has changed.

Well, something is changing in that it is becoming normalized, just as it has been for 25 years:

If one starts to combine some of these legal precedents, it’s not hard to see the territory we’re entering when terrorists have no rights and an ever increasing number of Americans are being accused of carrying the label. Is it just a matter of time before we get the first al-Awlaki on American soil?

With the talk of suspending habeas corpus and declaring enemy combatants in the US, it might not be long.

As Palestinian-American activist and Columbia University graduate Mahmoud Khalil asked in a Washington Post op-ed: “Why should protesting Israel’s indiscriminate killing of thousands of innocent Palestinians result in the erosion of my constitutional rights?”

The same question applies to several others protesting the Israeli genocide of Palestinians and the US support for it. Secretary of State Marco Rubio called the move a national security issue, saying student visas shouldn’t be awarded to people who “hate our way of life,” which sounds remarkably similar to the early days of the War on Terror explanation that “they hate us for our freedoms.”

One could argue that Rubio is right if the American way of life includes supporting genocide. If, on the other hand, that way of life includes constitutional rights, it’s unclear why a proper response would be to take them away.

This heavy-handed response to those protesting the slaughter of Palestinians is not altogether surprising considering the US has gone as far as repeatedly turning a blind eye to Israel killing American citizens.

But what of the thousands of immigrants (with the administration seeming to take a special interest in union member immigrants) and countless other Americans—a number impossible to say since we don’t know how many the CIA and NSA are illegally spying on—who are also losing their constitutional rights? Do they too hate the American way of life? Or is it simply that they are, as Trump says, criminals?

We may never know if new precedents are set soon.

Trump adviser Miller did say, after all, that the “privilege of the writ of habeas corpus can be suspended at a time of invasion,” which the Trump administration claims is the current state of play. That would open Pandora’s Box wide as we arrive at a moment when it’s clear that no one is protected by their constitutional rights.

NOTES

[1] If you’re a little rusty on your amendments, as I am, this might require a doublecheck. As is often the case, there appears to be some legal gray area. Here’s Constitution Annotated:

In 1903, the Court in the Japanese Immigrant Case reviewed the legality of deporting an alien who had lawfully entered the United States, clarifying that an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its populationcould not be deported without an opportunity to be heard upon the questions involving his right to be and remain in the United States.1 In the decades that followed, the Supreme Court maintained the notion that once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.2

Eventually, the Supreme Court extended these constitutional protections to all aliens within the United States, including those who entered unlawfully, declaring that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.3 The Court reasoned that aliens physically present in the United States, regardless of their legal status, are recognized as persons guaranteed due process of law by the Fifth and Fourteenth Amendments.4 Thus, the Court determined, [e]ven one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.5 Accordingly, notwithstanding Congress’s indisputably broad power to regulate immigration, fundamental due process requirements notably constrained that power with respect to aliens within the territorial jurisdiction of the United States.6

Yet the Supreme Court has also suggested that the extent of due process protection may vary depending upon [the alien’s] status and circumstance.7 In various opinions, the Court has suggested that at least some of the constitutional protections to which an alien is entitled may turn upon whether the alien has been admitted into the United States or developed substantial ties to this country.8 Thus, while the Court has recognized that due process considerations may constrain the Federal Government’s exercise of its immigration power, there is some uncertainty regarding the extent to which these constraints apply with regard to aliens within the United States.