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Unconstitutional?, Undoubtedly!

Does the U.S. government have the right to incarcerate foreign nationals suspected of terrorism without formal charges or the advice of an attorney?

Throughout the history of this country battles over the government’s power and rights have waged strong. The question today has become how far can the government go waving a banner claiming safety and security? Can it break the laws of the doctrine giving it power? Can it violate the rights of the people living on its soil – the rights the government itself granted? It cannot and should not. The United States government has no right to incarcerate foreign nationals at whim without pressing formal charges and then proceed to deny these persons the right to legal counsel.

The United States Constitution guarantees civil liberties in the Bill of Rights (specifically in Amendments four, six, and eight). Among these are the right against unreasonable search and seizure, the right to a speedy and public trial, and protection against cruel and unusual punishment. It is true that these foreign nationals are not citizens of this country; however, they are people living in this country. The Constitution does not guarantee these rights to its citizens alone; it specifically guarantees them to all people and to all accused “persons”. How can the government remove these rights without due process of the law? It cannot.

It is inarguable that this is, in fact, happening today with the open support of the Bush administration. There have been numerous documentaries portraying family members pleading to have their loved ones returned to them; these loved ones were taken in the months following September 11, 2001. These individuals were taken against their will, never formally charged, were degraded, and denied access to their families. The government claimed that they were being taken on suspicion of terrorist links, yet the vast majority of these persons have never been charged with anything in connection to Al-Qaeda or the 9/11 attacks. While in custody these individuals were interrogated, hurt, and abused - some to the point of death. One such person, Rafiq Butt was confirmed to have died in U.S. custody (American Nightmare – Web). Many of these persons are, to this day, in custody, having been transferred to military bases, but still not charged with any crime. Does our government plan on holding these people indefinitely on mere suspicion with a complete lack of factual evidence?

In a press release given by U.S. Assistant Attorney General Michael Chertoff on November 28, 2001, he openly admitted to the U.S. holding 548 individuals in federal custody and said that all have access to legal counsel and all have been formally charged in accordance with the law and the US Constitution (Justice Department Press Release – Web). He also claimed that these persons are not being denied access to legal counsel or their families. Mr. Chertoff, however, failed to explain the numerous families begging for their loved ones on national television. How can these families access detained persons on US military installations, which is where most of these detainees are being held, such as on a naval base in Cuba? Chertoff also claimed that the government couldn’t reveal the names of many of these persons as they are under seal by the order of a federal judge, but that detainees were never stopped from “identifying themselves”. How can a person being denied his or her rights do that, in federal custody, while behind bars? Basically the government’s entire case against these foreign nationals lies within its refusal to recognize that these nationals have rights - rights granted to all persons by the US Constitution that protect them from the government and the bureaucracy.

The administration has given a variety of reasons for allowing these practices of the military to continue, most of which borrow from history. In one instance, the White House points to the authority given to President Roosevelt in World War II by the US Supreme Courts in apprehending Nazi saboteurs. As Rogers M. Smith, a professor of political science at the University of Pennsylvania, clearly points out in his work (ZGram editorial – Web), this is not what the courts had in mind when they endorsed President Roosevelt. Smith makes the distinction between the two cases quite clear. He begins by stating, “Today, Congress has not declared war against any nation, nor was it even consulted about the administration's plan to impose martial law.” He argues that Congress had declared war on Germany making all citizens of Germany “alien enemies” as far as the law was concerned. Also, these German soldiers were trying to gain forced entry into the United States, carried destructive weapons, and had proven intent to harm American citizens. Smith goes on to say that the military courts that these foreign nationals are tried in are detaining citizens of countries with which the U.S. has long been at peace. He also points out that these military courts require flimsy evidence for convictions, which is certainly far less than anything the US had against the Nazi saboteurs. The basic implication is that these military tribunals are nothing more than witch hunts in response to the 9/11 attacks and the President’s executive order proclaiming a state of emergency at home.

Benjamin Franklin, a man most instrumental in the foundation of our country, once said in his “Historical Review of Pennsylvania, 1759”, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” Franklin wrote this as a plea begging the King to help the colonists in their fight against the Native Americans. In this single statement, Franklin represents all that our country’s ideals encompass. It emphasizes that we hold nothing dearer than our civil liberties. In these trying times, we cannot afford to stray from this idea. It has become clear that while the current administration may have good intentions, the military leaders are simply pointing fingers at the international community, under the pressure from Washington to respond. Essentially the foreign nationals residing within this country, who are often from countries that the U.S. has had no conflict with, are having their rights trampled upon. The U.S. government has no basis for which they can legally incarcerate foreign nationals without pressing formal charges or granting the advice of legal counsel.

The forefathers of this country had firsthand experience with a government that trampled on the rights of its people, which they made abundantly clear in the Declaration of Independence would no longer be tolerated. We must recognize the injustice being done in front of us, call for reform in our government, and place bounds on its ever-growing hands hidden behind the curtains of national security. A passage comes to mind: “When they came for my fellow human beings, I didn’t care. When they came for my countrymen, I didn’t care. When they came for my neighbors, I didn’t care. When they came for me, there was nobody left to care.”


Web: Travis Morales, “American Nightmare – After 9/11: The War on Immigrants” [web page] July 2003; [Accessed 27 Feb. 2005].

Web: U.S. Assistant Attorney General Michael Chertoff, “Justice Official Discusses U.S. Terrorism Investigation” [web page] Nov 2001; [Accessed 03 Mar 2005].

Web: Rogers M. Smith, “With justice for some, not all?” [ZGram Editorial] Nov.2001; [Accessed 03 Mar 2001].

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