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The US government does not have the right to incarcerate foreign nationals suspected of terrorism without formal charges or the advice of an attorney.

revised as of april 19h, 2005

Balancing national security with the rights of individuals continues to be a concern today. After the events of September 11th, national security has come to the forefront of many Americans minds. Everyone could agree that the government has a responsibility to protect the American people from the threat of terrorists. However, as to the best way to go about ensuring said protection, there are many opinions. Balancing this need for security with the rights of individuals is one challenge Americans face. One focus of this issue is how many of the rights guaranteed United States citizens carry over to foreign nationals. The US government does not have the right to incarcerate foreign nationals suspected of terrorism without formal charges or the advice of an attorney.

One important point is to define a foreign national. It can be gathered from government forms that a foreign national is someone in the United States, illegal alien or not, but never a citizen.

The Constitution describes the responsibility of the government to those it incarcerates. Amendment V reads, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury . . . nor be deprived of life, liberty, or property, without due process of law.” Therefore, the United States constitution acknowledges that the incarceration of any person without these specified rights is wrong. Imprisonment without these steps can be seen as deprivation of liberty, and therefore unconstitutional.
Amendment VI discusses the rights of the accused, specifying that “In all criminal prosecutions, the accused shall enjoy the right to a public and speedy trial . . . to be informed of the nature and cause of the accusation . . . and to have the assistance of counsel for his defence.” Any person must be granted these rights. Inspector General Glenn A. Fine offered this example of when the rights of foreign nationals were not upheld.

”The department instituted a “hold until cleared” policy for these detainees. Although not communicated in writing, the policy was clearly understood and applied throughout the department. The policy was based on the belief that the clearance process would proceed quickly and would take only a few days or a few weeks to clear aliens arrest on PENTTBOM leads. That belief was inaccurate. The FBI cleared less than 3 percent of the 762 detainees within 3 weeks of their arrest. The average length of time from arrest of a detainee to clearance by the FBI was 80 days.”

This example, where leaders did not regulate the process and simply left to faith the treatment of the detainees, shows the need for specific regulations. If there is a body of legislation which applies directly to foreign nationals, it is not well-known or easily accessible. The legal documents already written speak about U.S. citizens (the constitution) or the Geneva Convention (speaking about prisoners of war) and others, but not about the rights of foreign nationals. Therefore, the United States seems fully free legally to detain foreign nationals without formal charges or an attorney’s assistance. Much of the basis of these laws applies to the detention of foreign nationals. These other laws establish a precedent, defining what we as united states citizens feel is the minimum treatment necessary for any person.

The constitution, more specifically Article VI, reads “This constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land . . .” Meaning any treaty which specifies the process of detaining must be followed as closely as Americans follow the constitution itself.

The Geneva Convention is one such treaty. The agreement offers a complex
definition of prisoner of war. A prisoner of war is a person who takes up arms, under the command of another person. Therefore, some foreign nationals being held currently cannot be defined as prisoners of war. However, the Convention still offers something to the debate: the international community has defined the proper treatment of incarcerated persons, and we must therefore assume that the world holds certain standards which must be observed. These are mainly ethical standards, but they correlate well with the values of our own constitution, and should be seen as a guide for any imprisonment, not simply those defined as prisoners of war or citizens of the United States.

While there is no law directly guaranteeing the rights of foreign nationals, some government policy reflects the belief that foreign nationals should be treated as citizens or prisoners of war. “When a foreign national is arrested or detained in the United States, there are legal requirements to ensure that the foreign national’s government can offer him/her appropriate consular assistance.”
The problem with basing an argument on the constitution is that the constitution only applies to United States citizens. It states in the opening that it defines a person as such, and then continues to outline the rights of said people. The incarceration of foreign nationals without formal charges or the advice of an attorney is not unconstitutional by exact law. However, it is against the spirit of the constitution, and in that way it is unconstitutional.

The government has a responsibility to protect its citizens. The constitution addresses this as well, stating that “The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The US government does not have the right to incarcerate foreign nationals suspected of terrorism without formal charges or the advice of an attorney. This is not based on any law directly applicable to foreign nationals, because there is none. However, there are many laws applying to the proper and appropriate treatment of people incarcerated anywhere for any reason.

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