The debate over whether the accused Underwear Bomber should be tried in a defendant-friendly federal court instead of by a more rigorous military tribunal got me to reflecting: just who was the 100 percent-American Bill of Rights drafted to protect in the first place? Terrorists? Does the reach of the flag-wrapped first ten amendments extend to a radical Nigerian Muslim like Umar Farouk Abdulmutallab, charged with trying to blow up an airplane flying from Amsterdam to Detroit? He’s not even a citizen of the United States. Just what claim does he have to the Bill’s red-white-and-blue benefits to begin with?
You bet your BVDs that, under our theory of constitutional government he’s entitled to every last one of the Bill’s benefits, from freedom of religion to freedom from unreasonable searches, and, more germanely, to the protections of the Sixth Amendment: “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 where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The thing is, to the minds of the Founders, those are rights, not privileges, and natural rights at that. Natural rights exist independently of governments, and, to use that catchy eighteenth-century word, they are unalienable. They don’t depend on citizenship; they aren’t things a government grants, though they are things a government can be required to enforce, or at least not to infringe. The point of the Bill of Rights was to fix on paper those natural rights—some of them, anyway—that people enjoy not by virtue of their being citizens, but by virtue of their being people. At least, that was the Founder’s theory.
At that, there is nothing in the theory or the amendment to say that Mr. Abdulmutallab’s fair-trial rights can’t be protected as effectively by a military panel as by a jury in the federal court for the eastern district of Michigan. We courts martial people all the time without infringing too much on their Sixth Amendment rights. But that begs the question: Why not try Abdulmutallab in a federal courtroom? Why put the proceedings behind the fence of a military compound? Is it because convictions there are surer and easier to get?
But, hey, it is not as if the verdict is much in doubt: crew and fellow passengers wrestled Abdulmutallab into submission as he tried to set afire his underpants, and held him until he FBI arrived. Why not try him in a free and open forum where the world can judge whether the United States does full and fair justice even to its enemies? Why not do what seems to me is naturally right?