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Final paper

The US constitution included the Sixth amendment for a reason. The people of the new republic did not want this adolescent nation to behave as poorly as its parent nation. The tyranny of the monarchy in England led our founders to set up precautions in order to avoid the same problems. Instead of the system where the Monarch’s word was final, we were to have a system that was fair and just, no matter whom the criminal was. This was a revolutionary step for any nation, let alone an inexperienced one. Fundamental rights for all the people, even criminals and the accused, were unheard of in those days. Another important aspect dealing with prisoners’ rights was laid out in the First amendment. The government would not hide information dealing with its matters from the people. Its doings were to be public knowledge no matter how trivial or important. The only times when it would not be in the right of the public to know the government’s actions were times when information conflicted with other parts of the constitution. These two clauses were the roots of one of the most rights based legal systems the world had ever seen. They also define the proper means of how the US government is permitted to incarcerate foreign nationals suspected of terrorism.
The Sixth amendment’s justification as an amendment was to avoid what the British government was doing at the time the constitution was ratified. Some enemies of the King would be detained and held even though they committed no crime. This was not just and the founding fathers wanted to ensure that our government never would have that type of tyrannical rule over the people. The accused are innocent until proven guilty so therefore they have almost all rights of law-abiding citizens. This nation created a new type of legal system, one that protected the public from the law. In order for a person to be incarcerated, certain conditions must be met or the government is out of line and overstepping its bounds. This line has been crossed in the case against the detainees in Guantanamo Bay and other foreign nationals being held in the name of “protection from terrorism”.
The Sixth amendment reads, “In all criminal prosecutions, the accused shall enjoy the right…” (Constitution 1788, Amd. 6) That states something very critical in the Guantanamo Bay cases. It does not say, “citizens of the United States of America,” but rather broadly covers all accused. This means that foreign nationals and citizens alike are due these rights. However, the courts do not always agree. There are two important cases involving the Sixth amendment. In Ex parte Milligan, an Indiana (Haridakis 2004, 322) resident protested to being convicted by a military tribunal during the Civil War. The Supreme Court ruled that if the civilian courts are operating, even in times of war, then they shall be used for trials rather than the military’s justice system. Also, this defendant was a “U.S. citizen who had not been a resident of the belligerent confederate states” (Haridakis 2004, 322). In Ex parte Quirin (Haridakis 2004, 322) the Supreme Court heard the habeas corpus petition of eight Germans captured by the FBI. In that case, the high court ruled that the defendants were unlawful fighters of an enemy of the nation so a military commission could try them.
When the United States defines what an incarcerated foreign national is, it is required to abide by the standards set in the Geneva Convention (UN. 1949, Art. 4). Either the government can define a person as a prisoner of war or as a civilian. When defined as a civilian, they have certain rights and even though prisoners of war can be treated differently, they are also entitled to similar rights. Based on the Geneva Convention, unless the United States can prove the people held in Guantanamo Bay meet one of the requirements for a prisoner of war, they must be treated as civilians (UN POW 1949, Art. 4-A-2). The United States however considers many detainees, such as the ones in Guantanamo Bay, as enemy combatants and do not treat them the same as under the Geneva Convention. This status may be in legal grey area since the Defense Department’s definition of an enemy combatant could also be considered a prisoner of war under the Geneva Convention. Their definition of an enemy combatant is: “An individual who was part of or supporting Taliban or Al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces." (Khalid v. Bush 2005, 1). This definition overlaps with the POW definition as defined in the Geneva Convention. Treaties confirmed through Constitution process are held with almost as much authority as the Constitution itself. Whether the legal definition of an enemy combatant can co-exist with the prisoner of war definition is yet to be determined.
The first amendment is one of the key foundations this nation has been built from. In one of the Federalist papers, Alexander Hamilton said that public trials by jury were very important for this nation (Hamilton 1788, 1). Although the sixth amendment allows defendants to choose trial by jury, the fact that the trial is public is a right defined in the first amendment (Constitution 1788, Amd. 1). Before 1980, the government had not affirmed the publicity of trials. However in Richmond Newspapers, Inc. v. Virginia, the court said that the right for people to attend trials presumes openness of said trial (Haridakis 2004, 323). It is in the interests of the people to be aware and able to learn from trials, and the first amendment protects said rights. Trials for foreign nationals do not need to be closed to the public since the handling of their cases is in the realm of public knowledge.
In 2004, the Supreme Court ruled in Rasul v. Bush, and Al Odah v. United States that Guantanamo Bay prisoners had the right to be tried in US courts (SC 2004, 1). It rather clearly supports the fact that foreign nationals are entitled to due process as all Americans are. There is no legal standing for keeping prisoners without charging them, providing them a speedy trial, or providing them with a court appointed lawyer. President Bush has lost in the high court, but is still moving slowly in handling these prisoners. He has chosen to fight the Constitution and its living interpreter, the Supreme Court, on this issue. Despite pleas from nations where these people are citizens, many are still held for, in what their home nations often believe is, a misunderstanding. All they plea for is a fair trial where both cases may be presented without bias. For instance, Kular is a German native who was picked up in Afghanistan under suspicion of dealings with Al Queda, but has not had any evidence brought before him. Germany just wants a fair trial, but such a luxury has not yet been fulfilled. It is time that the President and his administration are held accountably for upholding the Court’s orders and the Constitution’s guidelines and provide the rights of these foreign national detainees.

"The Constitution of the United States," June 21, 1788. Amendment I - Freedom of Religion, Press, Expression.
"The Constitution of the United States," June 21, 1788. Amendment 6 - Right to speedy trial, confrontation of witnesses.
Haridakis, Paul. 2004. “The War on Terrorism: Military Tribunals and the First Amendment,” Communication Law and Policy 9: 317-337.
"The Constitution of the United States," Amendment I - Freedom of Religion, Press, Expression.
Office of the High Commissioner for Human Rights: UN. "Geneva Convention relative to the Protection of Civilian Persons in Time of War", the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War; Geneva, Switzerland. 12 August 1949.
Office of the High Commissioner for Human Rights: UN. "Geneva Convention relative to the Treatment of Prisoners of War", the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War; Geneva, Switzerland. 12 August 1949.
Hamilton, Alexander. May 28, 1788. “Federalist, no. 83”, 558—74.
SUPREME COURT OF THE UNITED STATES. April 20, 2004. “Shafiq Rasul, et al., Petitioners v. George W. Bush and Al Odah, et al., Petitioners v. United States, et al.”

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