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.


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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