The Candidates and the Fifth Amendment

This is the fifth post in an ongoing series regarding the major Presidential candidates and their views on civil liberties.

This post is about Senator John McCain's (R-AZ) and Senator Barack Obama's (D-IL) views pertaining to the Fifth Amendment of the Bill of Rights. The Fifth Amendment is the "kitchen sink" amendment from the framers regarding legal procedures and trials.

Here's the text:

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 offense 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.

Ok, so we have Grand Juries, double jeopardy, self incrimination, due process, and eminent domain.

Yippee. This is going to be a long post.

As usual, we'll be starting with Barack Obama.

Doing some research, the first thing that I stumbled upon is that the telecom immunity provision of the 2008 Amendments to the FISA Act is under criticism not only for violations of the Fourth Amendment (as I documented here), but also the Fifth. Fifth Amendment protectors claim that your phone records and conversations are private property and cannot be seized without just compensation. Seems a little bit of a stretch to me, but I'm no expert on Constitutional Law.

Doing a search on Mr. Obama and the Fifth Amendment only yields FISA criticisms and criticisms of his associates who have used the self-incrimination clause of the Fifth Amendment.

So, we'll have to look at the specific clauses and not just the amendment as a whole.

I can find nothing in Obama's speeches or writings that leads me to believe that he wants to endanger Grand Jury rights. I'm personally not sure whether this is a good thing or a bad thing.

I can find nothing in Obama's speeches or writings that leads me to believe that he wants to endanger rights to protection from double jeopardy.

Barack Obama has interesting and frankly inconsistent views regarding due process.

He supports due process for Osama bin Laden:

“The first thing I’d support is his capture, which is something this administration has proved incapable of achieving,” Obama said. “I would then, as president, order a trial that observed international standards of due process. At that point, do I think that somebody who killed 3,000 Americans qualifies as someone who has perpetrated heinous crimes, and would qualify for the death penalty. Then yes.”

and Guantanamo detainees:

And, you know, let’s take the example of Guantanamo. What we know is that, in previous terrorist attacks — for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated.

And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, “Look, this is how the United States treats Muslims.”

and for illegal immigrants:

Obama opposes the “Shuler bill,” HR 4088, which establishes what many consider a deeply flawed national worker identification program and would use the Social Security system to require employers to fire any workers whose names do not match their Social Security numbers. Obama says the privacy of all U.S. workers must be protected and no one should be fired without full due process.

Yet not for infants (he strongly opposed the Illinois Born Alive Infant Protection Act):

I just want to suggest ... that this is probably not going to survive constitutional scrutiny.

Number one, whenever we define a previable fetus as a person that is protected by the equal protection clause or the other elements in the Constitution, what we're really saying is, in fact, that they are persons that are entitled to the kinds of protections that would be provided to a – child, a 9-month-old – child that was delivered to term. …

I mean, it – it would essentially bar abortions, because the equal protection clause does not allow somebody to kill a child, and if this is a child, then this would be an anti-abortion statute. For that purpose, I think it would probably be found unconstitutional.

These positions are remarkable in their inconsistency.

I find nothing in Obama's speeches or writings that lead me to believe he has any interest in curtailing the use of eminent domain. As I've mentioned before, he's remained completely silent on the Kelo decision by the SCOTUS, but he has praised the justices in the majority on that decision as the types of justices he would nominate.

Whew. That's a lot. And I tried to be brief.

Well, let's look at John McCain.

McCain suffers from the same FISA problems as Obama.

Like Obama, I can find nothing in McCain's speeches or writings that leads me to believe that he wants to endanger Grand Jury rights. Again, I'm personally not sure whether this is a good thing or a bad thing.

I can find nothing in McCain's speeches or writings that leads me to believe that he wants to endanger rights to protection from double jeopardy.

He has been in favor of giving Miranda rights to enemy combatants. He disagrees with Obama regarding Osama bin Laden and the Boumediene ruling by SCOTUS. In fact, McCain has called the Boumediene ruling "one of the worst decisions in the history of the country"

Articles detailing how McCain feels about enemy combatants are the only things I can find on him and due process.

He co-sponsored the Secure Public Networks Act (usually called McCain-Kerrey) which details domestic uses and restrictions of encryption. Since the bill requires that encryptors turn over their keys or passwords to the government, it can be claimed that this is a form of self-incrimination.

Note that this bill also has Fourth Amendment implications, and I missed that in my review of McCain and the Fourth Amendment.

McCain is no fan of eminent domain has been harshly critical of Kelo and has essentially said he will use Kelo as "litmus test" for potential Justices. He wants it overturned.

The protection of property rights lies at the heart of our constitutional system. The Framers of our Constitution drew upon classical notions of legal rights and individual liberty dating back to the Justinian Code, the Magna Carta, and the Two Treatises of John Lockeall of which recognize the importance of property ownership in a governmental system in which individual liberty and the free market are paramount.

In fact, from what I can tell, property rights have been a big deal to McCain throughout his political career.

So, where does that put us? You'll notice that I once again added in how the candidates feel about rights for enemy combatants. However, I will once again, be ignoring those feelings when assigning grades. I feel that rights granted to enemy combatants are at best peripheral to the discussion of American citizens rights.

For Obama we have: nothing on grand juries, nothing on double jeopardy, against due process for infants, nothing on self-incrimination, and against property rights due to his tacit support of eminent domain.

For McCain we have: nothing on grand juries, nothing on double jeopardy, nothing on due process, problems with self-incrimination, and support of property rights.

For the above, nothing is good as it means I wasn't able to find anything bad. :)

Obama: C

McCain: B+ His only negative is McCain-Kerrey.

Fifth Amendment: Advantage McCain.

On a general campaign note, the Obama camp better have a plan for dealing with his stance on the Illinois Born Alive Infant Protection Act. At some point, a 527 is going to release an ad claiming that Obama supports infanticide. It's inevitable. I am sure he doesn't, but hyperbole works in campaign ads, and they don't have to be true to be effective.

UPDATE: Grades lowered per this post.

Results so far:

	Obama	McCain
First Amendment*	F	D-
Second Amendment	D-	C-
Third Amendment	B	B
Fourth Amendment	D+	D+
Fifth Amendment	D+	B-

* Obama's First Amendment grade lowered as documented in this post.

UPDATE: Obama's First Amendment grade lowered to F as documented in this post.