Liberty under Law: Whatever Happened to Probable Cause, Due Process of Law, Trial by Jury, Proof beyond Reasonable Doubt, Public Trial, Etc., Etc.?

The Fifth Amendment to the Constitution of the United States provides in part:

No person shall ... be deprived of life, liberty, or property, without due process of law.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourteenth Amendment provides in part:

[N]or shall any state deprive any person of life, liberty, or property, without due process of law.

The Sixth Amendment provides:

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, 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 defense.

These rights apparently do not extend to ants, termites, pigs, horses, amoeba, dogs, or ants. They may not extend to Martians. They may not extend to homo sapiens aliens living abroad. They may not extend to humanoid aliens legally residing in the U.S.A. And they may not extend to native-born residents and citizens of the United States of America. Or so the Justice Department suggests:

“What would prevent you from plucking up anyone and saying, ‘You are an enemy combatant?’ ” Judge Roger L. Gregory of the United States Court of Appeals for the Fourth Circuit asked the administration’s lawyer, David B. Salmons.

Mr. Salmons said the executive branch was entitled to make that judgment in wartime without interference from the courts. “A citizen, no less than an alien, can be an enemy combatant,” he added.

Adam Liptak, Judges Pose Questions on Bush Detainee Policy, NYTimes Online (Feb. 1, 2007)