The Fifth Amendment – Some Perspective

Readability

The Fifth Amendment - Some Perspective

I was talk­ing with a friend of mine recently about some issues that arise on the nightly news. Many of these revolve around the Con­sti­tu­tion and var­i­ous things that show up on the nightly news about this doc­u­ment. The friend was also an Army Vet­eran and between the two of us have spent enough years in uni­form that we like to know what it is we are/​were defend­ing. So this topic does come up.

In par­tic­u­lar this con­ver­sa­tion revolved around the fifth Amend­ment. So for review here is the orig­i­nal text:

Orig­i­nal Text of the Fifth Amend­ment to the Con­sti­tu­tion of the United States

No per­son shall be held to answer for a cap­i­tal, or oth­er­wise infa­mous crime, unless on a pre­sent­ment or indict­ment of a Grand Jury, except in cases aris­ing in the land or naval forces, or in the Mili­tia, when in actual ser­vice in time of War or pub­lic dan­ger; nor shall any per­son be sub­ject for the same offence to be twice put in jeop­ardy of life or limb; nor shall be com­pelled in any crim­i­nal case to be a wit­ness against him­self, nor be deprived of life, lib­erty, or prop­erty, with­out due process of law; nor shall pri­vate prop­erty be taken for pub­lic use, with­out just compensation.

Dis­cus­sion

This Amend­ment is usu­ally not one that is argued ter­ri­bly often, with one notable excep­tion, how­ever it is invoked in ways that it may not apply, and recently.

It basi­cally tells us that the police (or other gov­ern­ment author­ity) can’t hold a Cit­i­zen for an unrea­son­able amount of time (dis­cussed below) with­out being charged of a crime. Being charged with a crime means there will be a trial. But, peo­ple will com­plain, there is a long time while the per­son is in con­fine­ment before their trial. This is due to the gath­er­ing of evi­dence phase, not because of any­thing else. You can argue what rea­son­able length of time is but that is where we must argue, not the valid­ity or inva­lid­ity of being held.

In other words, despite what prime time tele­vi­sion shows have told us, we can’t be thrown in jail, have the key thrown out, and never see the light of day again. That is, with­out being charged with a crime.

As we men­tioned this is usu­ally not argued by too many peo­ple, as even drug deal­ers and mur­ders see their day in court.

The notable excep­tion to this is the pris­on­ers from the Global War in Ter­ror that to this day still reside at a prison at Guan­tanamo Bay Cuba. These pris­on­ers went a very long time with­out being charged with any­thing. Here is the gov­ern­ment argu­ment for that exception.

They are not United States Cit­i­zens; they are not inside the United States and there­fore not sub­ject to our laws and priv­i­leges. They are, and this is where it gets sticky, on a Mil­i­tary Base. Those are gen­er­ally con­sid­ered US Ter­ri­tory. We really don’t know exactly how that one is got­ten around, but some­how it is.

On top of all of that they are con­sid­ered to be Pris­on­ers of War. While we are required by the Geneva Con­ven­tion to treat them with basic human rights, they don’t fall under our judi­cial system.

Is this gov­ern­ment argu­ment correct?

Maybe, but maybe not.

That is beyond the scope of this dis­cus­sion and could prob­a­bly fill book after book by itself (if you look on Ama­zon there may already be one). How­ever, the Con­sti­tu­tion does only apply to Cit­i­zens of the United States and really only to the area of the globe inside our borders.

The Con­sti­tu­tion, and the rights guar­an­teed by it don’t extend every­where. For instance, in Iran one can­not rea­son­ably expect to have the right to indef­i­nite detain­ment with­out being charged with a crime. There, you can be thrown into a prison for no appar­ent rea­son and the Con­sti­tu­tion of the United States can’t pro­tect you, even if you are a US Citizen.

Another recent pos­si­ble Fifth Amend­ment issue in the recent news cycles con­cerns the Inter­nal Rev­enue Ser­vice. There was a con­tro­versy of them hold­ing up and allegedly harass­ing groups with one (and only one) polit­i­cal ide­ol­ogy. That is the claim.

How true is that claim?

Well…enter the United States Con­gress doing an inves­ti­ga­tion (what could pos­si­bly go wrong now). The Con­gress ques­tioned an IRS offi­cial, and that offi­cial “took the fifth” and refused to answer ques­tions (pre­sum­ably so they wouldn’t incrim­i­nate themselves).

Here is the inter­est­ing bit.

That same offi­cial was offered immu­nity for any wrong­do­ing then pulled back in front of Con­gress. So, this amend­ment says you can refuse to answer so you don’t incrim­i­nate your­self. This per­son can’t pos­si­bly incrim­i­nate them­selves in the com­mis­sion of a crime…they have immunity.

So do Fifth Amend­ment rights per­tain to this? Can this per­son offi­cially refuse to answer ques­tions with­out being held in con­tempt of Con­gress (for which they can be thrown in jail)?

It is an inter­est­ing Con­sti­tu­tional question.

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If that’s not worth $20 a month I’d like to know what is?

I was talking with a friend of mine recently about some issues that arise on the nightly news.  Many of these revolve around the Constitution and various things that show up on the nightly news about this document.  The friend was also an Army Veteran and between the two of us have spent enough years in uniform that we like to know what it is we are/were defending.  So this topic does come up.

In particular this conversation revolved around the fifth Amendment.  So for review here is the original text:

Original Text of the Fifth Amendment to the Constitution of the United States

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Discussion

This Amendment is usually not one that is argued terribly often, with one notable exception, however it is invoked in ways that it may not apply, and recently.

It basically tells us that the police (or other government authority) can’t hold a Citizen for an unreasonable amount of time (discussed below) without being charged of a crime.  Being charged with a crime means there will be a trial. But, people will complain, there is a long time while the person is in confinement before their trial. This is due to the gathering of evidence phase, not because of anything else.  You can argue what reasonable length of time is but that is where we must argue, not the validity or invalidity of being held.

In other words, despite what prime time television shows have told us, we can’t be thrown in jail, have the key thrown out, and never see the light of day again.  That is, without being charged with a crime.

As we mentioned this is usually not argued by too many people, as even drug dealers and murders see their day in court.

The notable exception to this is the prisoners from the Global War in Terror that to this day still reside at a prison at Guantanamo Bay Cuba.  These prisoners went a very long time without being charged with anything.  Here is the government argument for that exception.

They are not United States Citizens; they are not inside the United States and therefore not subject to our laws and privileges.  They are, and this is where it gets sticky, on a Military Base.  Those are generally considered US Territory.  We really don’t know exactly how that one is gotten around, but somehow it is.

On top of all of that they are considered to be Prisoners of War. While we are required by the Geneva Convention to treat them with basic human rights, they don’t fall under our judicial system.

Is this government argument correct?

Maybe, but maybe not.

That is beyond the scope of this discussion and could probably fill book after book by itself (if you look on Amazon there may already be one).  However, the Constitution does only apply to Citizens of the United States and really only to the area of the globe inside our borders.

The Constitution, and the rights guaranteed by it don’t extend everywhere.  For instance, in Iran one cannot reasonably expect to have the right to indefinite detainment without being charged with a crime.  There, you can be thrown into a prison for no apparent reason and the Constitution of the United States can’t protect you, even if you are a US Citizen.

Another recent possible Fifth Amendment issue in the recent news cycles concerns the Internal Revenue Service.  There was a controversy of them holding up and allegedly harassing groups with one (and only one) political ideology.  That is the claim.

How true is that claim?

Well…enter the United States Congress doing an investigation (what could possibly go wrong now).  The Congress questioned an IRS official, and that official “took the fifth” and refused to answer questions (presumably so they wouldn’t incriminate themselves).

Here is the interesting bit.

That same official was offered immunity for any wrongdoing then pulled back in front of Congress.  So, this amendment says you can refuse to answer so you don’t incriminate yourself.  This person can’t possibly incriminate themselves in the commission of a crime…they have immunity.

So do Fifth Amendment rights pertain to this?  Can this person officially refuse to answer questions without being held in contempt of Congress (for which they can be thrown in jail)?

It is an interesting Constitutional question.

******************************************************************

Olimometer 2.52

This blog exists as a full time endeavor thanks to your support.

The reporting, the commentary and the nine magnificent seven writers are all made possible because you, the reader choose to support it.

For a full month of all of what we provide ,we ask a fixed amount $1465, under $50 a day.

This month we are behind, but we can make our goal if we can get $143 per day  6 $25 Tip jar hits we can make that goal.

Jesus said  laborer deserves his payment.  (Lk 10:7) If you think the work we do here for the conservative movement is worth it, please consider hitting DaTipJar below .

Naturally once our monthly goal is made these solicitations will disappear till the next month but once we get 61 more subscribers  at $20 a month the goal will be covered for a full year and this pitch will disappear until 2015.

Consider the lineup you get for this price, in addition to my own work seven days a week you get John Ruberry (Marathon Pundit) and Pat Austin (And so it goes in Shreveport)  on Sunday  Linda Szugyi (No one of any import) on Monday  Tim Imholt on Tuesday,  AP Dillon (Lady Liberty1885) Thursdays, Pastor George Kelly Fridays,   Steve Eggleston on Saturdays with  Baldilocks (Tue & Sat)  and   Fausta  (Wed & Fri) of (Fausta Blog) twice a week.

If that’s not worth $20 a month I’d like to know what is?