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Final Draft - Rohan

Rohan's Final Draft, Issue 4


Promoting Judicial Preemptive Retaliation to Terrorism


Throughout the history of the United States, the Constitution has provided the basis for national law and public policy. With the recent terrorist attacks and subsequent War on Terror, grave threats to national security have emerged, and the need for expeditious incarcerations of potential threat suspects, especially foreign nationals, has been debated in the government. With the severe perils of today’s terrorism, the government should not have any interference if it does incarcerate without due process, especially since the individuals in question are not American citizens, and therefore, not protected by the Constitution.

The main issue in the debate upon hasty incarceration is who is covered under the Constitution. The document does not explicitly specify who is or is not covered under the guidelines of the Constitution, so neither argument is firm in that sense. However, patterns through history can be examined. In typical trials, foreign nationals have been granted the same rights as a citizen, so long as they entered the nation legally. The converse of this can be demonstrated well through immigration cases, where long periods of imprisonment or instant deportation are common. The question that has risen recently is where foreign nationals, often in cases of security threats, should be classified.
In Article I, Section 9, the Constitution states “the privilege of the Writ of Habeas Corpus shall not be suspended, unless in Cases of Rebellion or Invasion the public Safety may require it.” This should provide reasoning for the detention of foreign nationals suspected of being terrorism threats. In such instances, it is essentially an invasion, whether through legal processes such as the 9/11 hijackers, or illegally, and these suspects present severe threats to “public safety” and the overall well-being of the union. Therefore, foreign nationals suspected on terrorism charges should not be guaranteed the rights of ordinary American citizens.

This Constitutional conflict is amplified when one examines Amendments number V and VI, both of which protect the rights of the accused. Amendment V states that a suspect should not be “deprived of life, liberty or property, without due process of law”, while Amendment VI grants the rights of a “speedy and public trial”, and “assistance of counsel for his defense.” However, the Patriot Act of 2001 recognized that the nation is in a different era with different threats than those faced in the late 18th century. The act grants the government to detain persons who provide “reasonable grounds to believe” (Patriot Act) that they present a security threat. It also “provides tools to assist law enforcement in combating terrorism, while preserving the constitutional rights that make America worth protecting,” (Patriot Act) thus further explaining the recent adaptations to changes in civilization, in conflict with the Constitution.

In addition, society and global politics have evolved over the 200 years since many of the aforementioned laws were passed. The United States Constitution, written and first ratified in the lat 1780s, was written before what we today know as terrorism really became an issue. Terrorism itself was in its infancy at the time, with the French Revolution being one of the first examples of mass terrorism, which was shortly after the Constitution was written. With the challenges of today’s terrorism, this just shows why the Constitution was written fairly loosely to allow policymakers the ability to change the laws and procedures to adapt to the modern times. As writer Jessica Stern noted in her book The Ultimate Terrorists, “when the founding fathers framed the Bill of Rights, they probably did not foresee Aum Shinrikyo or imagine the kinds of scientific advances that made it possible to commit mass violence” (Kellman 2000, 437). This is just a demonstration of the right to change under circumstances unseen by the framers, which were endowed upon today’s leaders by the forefathers themselves.

Though the recent procedures are justified through examination of the Constitution, the threat to national security may be the largest reason to allow the government to incarcerate terrorism suspects without due process. Following the terrorist attacks of September 11, 2001, and the ensuing wars have made the United States a prime target of global terrorism. Heightened security and awareness are necessary to avoid more devastating attacks, and part of that process includes the need for a pro-active approach.

Terrorism is a form of warfare, a guerilla attack (or threat of attack) to induce fear in people that is often motivated politically or ideologically. Though not standard warfare, the 21st century has brought this change in warfare. In order to adapt to the changes, we as a nation need to change our approach to this new style of warfare. Unfortunately, traditional methods of warfare do not combat terrorism too well. The United Nations recognizes terrorist groups as non-state combatants, as did the provisions of Additional Protocol I of the 1949 Geneva Conventions, which qualified armed forces of non-state “national liberation movements” as combatants (Watkin 2004, 7), and the United Nations declared terrorism to be a threat to “international peace and security” (Rosand 2003, 333). All of these provisions of historical international law mandates call for different treatment standards for citizens versus combatants, and since they all regard terrorists as combatants, certain protections under Geneva and the UN Charter do not apply.

Fighting terrorism presents unique challenges to the United States. It is a general theory that the best way to fight and prevent terrorism is to be pro-active, and to strike before being attacked. Without the right to incarcerate foreign nationals suspected of terrorist activities, a nation greatly enhances the risk of attack. Glenn Schweitzer, author of the book Superterrorism: Assassins, Mobsters and Weapons of Mass Destruction, states that “the more limitations on the freedom of action of the government, the more limited the protection from terrorists” (Kellman 2000, 437). In an effort to prevent terrorism and save lives, any foreign national suspected of terrorism acts should not be given the time to possibly carry out an attack, rather, should be detained as soon as possible, regardless of current statutes for American citizens.

Another piece of support for denying terrorists of foreign citizenship is the philosophies behind the “golden rule”. The idea of “do unto others as and you would like others to do unto you” brings forth more reasons. “Terrorist groups consist entirely of human rights violators” (Kellman 2000, 437) says Glenn Schweitzer, author of the book Superterrorism: Assassins, Mobsters and Weapons of Mass Destruction. Terrorists have long murdered people and damaged property to make a point. In the Middle East alone, thousands upon thousands of people, ranging from schoolchildren, to tourists, to the elderly, have been killed by terrorists in the past half century. These same terrorists have attempted to gain control of nuclear, chemical and biological weapons so that they will be able to one day commit acts of genocide. They do not fight by common international warfare standards, so they should not be entitled to any protection of the law. If terrorist are willing to violate the rights of others, there is no reason that the American government cannot violate the rights of the terrorists, though they are still not bestowed with rights by the Constitution.

Although the US Constitution, along with international guidelines from bodies such as the Geneva Convention and United Nations, contain mandates for the protection of the rights of the accused, the limitations only go so far. The Constitution states, both explicitly and implicitly, that the rights granted do not apply to foreign nationals, rather, only to citizens of the United States. In the world of modern terrorism, the world has changed, and the forefathers had enough insight to recognize such revolutions, so they left the Constitution open to alterations. The ability to hunt and detain these terrorists without the constraints of ordinary criminal procedures is critical to save time and help prevent attacks when mere minutes can be crucial in the War on Terror. The overlying point is that foreign nationals suspected on terrorism charges are not United States citizens, and are armed militants that often violate the precedents of warfare and civilized humanity. There is no reason to protect the rights of such ruthless criminals, and they should be subject to indefinite imprisonment without the due process of law or the consultation of an attorney.

Works Cited
Barry Kellman. April 2000. “Clashing Perspectives on Terrorism,” The American Journal of International Law 94: 434-438.
Eric Rosand. April 2003. “Security Council Resolution 1371, the Counter-Terrorism Committee, and the Fight against Terrorism,” The American Journal of International Law 97: 333-341.
Kenneth Watkin. January 2004. “Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict,” The American Journal of International Law 98: 1-34.
Patriot Act. Public Law 107-56. 26 October 2001. Stat. 115.272.

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