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Final Paper

There is currently a large amount of debate regarding detaining persons suspected of terrorism. More specifically, foreign nationals suspected of terrorism. Many people feel that all persons are protected under the constitution and have certain rights that cannot be infringed upon by an unwarranted arrest and a denial of due process. Others believe that foreign nationals are not protected by the US Constitution and therefore are subject to being detained in order to protect the American people. As you will soon see, this is not something that the Supreme Court has ignored.

The US government has the right to incarcerate foreign nationals suspected of terrorism without formal charges or the advice of an attorney, depending on a few factors. Under typical circumstances, such as a crime committed by a US citizen on US soil, the suspect is protected under the 5th amendment, which gives the right to due process (a speedy and fair trial, etc…). However, the Supreme Court has made itself very clear that foreign nationals do not have any constitutional rights. They are only afforded the rights granted by Congress (Kwang Hhai Chew v. Colding). The only foreign nationals granted protections under the 5th amendment are those legally abiding in the United States, and those with substantial property in the US.

Many people argue that all people deserve due process. However, have a look at Hodel v. Virginia Surface Mining: “The Court has often acknowledged… that summary administrative action may be justified in emergency situations.” The Supreme Court has specifically created a ‘test’ for determining when it is okay to bypass due process. This is called the Mathews test. It was formulated in Mathews v. Eldridge. This test calls for 3 things to be considered. The first is “the private interest that will be affected by the official action.” The second calls for the risks of an erroneous deprivation of due process to be evaluated. The last thing that must considered according to the Mathews test is “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

So, to develop an opinion regarding detaining terrorists, why not use the same method the Supreme Court would (since the question is what the US government has the right to do, and the SC ultimately determines what rights the government has)? First, who is the private interest that will be affected? A terrorist – Someone who violates the rights of others as a lifestyle. Does it seem an injustice to delay due process for someone who has committed atrocities against our nation and others? It is completely jusitified.

Second, what would happen if the accusations turned out to be false? Well, the private interest may be upset. It seams to me that anyone concerned should be understanding of what was at stake, and what could have happened if the situation had been reversed, and a guilty person got away. While it doesn’t seem that anything constructive would be done, it also doesn’t seem that anything deconstructive is being done either.

I think the most important consideration is what is at stake if we are not able to detain them. Last, the government’s interest must be considered. The government’s interest is protecting life, liberty, and the pursuit of happiness. If a terrorist is planning an attack on the United States or any one of its citizens, I think that puts the government of our country in a position of responsibility. It is very important that the government be able to keep itself, along with her citizens, safe from a terrorist attack. If detaining a terrorist without due process is what that takes, then so be it.

As I stated earlier, many people feel it is a violation of human rights in general to detain someone without due process, as if the 5th amendment is unnecessary because the right to due process is implied for all human beings. For someone to argue that it is a violation of human rights for someone suspected of terrorism, they must not realize what terrorism is. It is in itself a violation of human rights. For example innocent people have the right to live. Al Qaeda denied that right to more than 3000 innocent American citizens on September 11, 2001. For us to be concerned with these people’s rights is a waste of time.

There are currently more than 500 persons suspected of terrorism being held at Guantanamo Bay. Recently the Supreme Court heard arguments to determine what rights these prisoners had. Of the right to a lawyer, the right to a trial (the same kind as American’s receive), and the right of habeas corpus, the only one the Supreme Court granted to these prisoners was the right of habeas corpus. However, they intentionally did not spell out what this plea was to look like. It was left to the district courts to decide how to handle a prisoner that wants to know why he is being held. An entirely different process was created for these prisoners, a military tribunal.

In conclusion, there are two different types of terrorists. One that has "significant ties" to the United States and one that does not. That is what the Supreme Court has decided. Those that have significant ties to the United States are afforded due process under the rights granted in the Constitution. Those that do not have the right to due process only have the right to habeas corpus, though it remains to be seen what this looks like in court. In the case of due process however, it is still legal to delay due process long enough to ensure the safety of the American people.

Sources:
Broxmeyer, Eric. “The problems of security and freedom: Procedural due process and the designation of foreign terrorist organizations under the anti-terrorism and effective death penalty act.” Berkeley Journal of International Law. June 2004.


Evaluations of Version 2

Version 2

There is currently a large amount of debate regarding detaining persons suspected of terrorism. More specifically, foreign nationals suspected of terrorism. Many people feel that people are protected under the constitution and have certain rights that cannot be infringed upon, by an unwarranted arrest. Others believe that foreign nationals are not protected by the US Constitution and therefore are subject to being detained in order to protect the American people.

The issue as stated by this paper assignment is: “The US government has the right to incarcerate foreign nationals suspected of terrorism without formal charges or the advice of an attorney.” Under typical circumstances, such as a crime committed by a US citizen on US soil, the suspect is protected under the 5th amendment, which gives the right to due process. However, the courts have made themselves very clear that foreign nationals do not have any constitutional rights. They are only afforded the rights granted by Congress. (Kwang Hhai Chew v. Colding). The only foreign nationals granted the 5th amendment are those legally abiding in the United States.

Many people argue that all people deserve due process. However, it seams to me that this isn’t much of an issue when you consider that the Supreme Court has specifically created a ‘test’ for determining when due process is actually granted. This is called the Mathews test. It was formulated in (Mathews v. Eldridge). This test calls for 3 things to be considered. The first is “the private interest that will be affected by the official action.” The second calls for the risks of an erroneous deprivation of due process to be evaluated. The last thing that must considered according to the Mathews test is “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

So, to develop an opinion regarding detaining terrorists, why not use the same method the Supreme Court would (since the question is what the US government has the right to do, and the SC does ultimately determine what rights the government has)? First, who is the private interest that will be affected? A terrorist – Someone who violates the rights of others as a lifestyle. Does it seem an atrocity to delay due process for someone who has committed real atrocities against our nation and others? I think not.

Second, what would happen if the accusations turned out to be false? Well, the terrorists might be angry with America. But honestly, are they not already? While it doesn’t seem that anything constructive would be done, it also doesn’t seem that anything deconstructive is being done either.

I think the most important consideration is what is at stake if we are not able to detain them. Last, the government’s interest must be considered. The government’s interest, it would seem to me is protecting life, liberty, and the pursuit of happiness. If a terrorist is planning an attack on the United States or any one of its citizens, I think that puts the government of our country in a position of responsibility. It is very important that the government be able to keep itself along with her citizens safe from a terrorist attack. If detaining a terrorist without due process is what that takes, then so be it.

As I stated earlier, many people feel it is a violation of human rights in general to detain someone without due process, as if the 5th amendment is unnecessary because the right to due process is implied for all human beings. For someone to argue that it is a violation of human rights for someone suspected of terrorism, they must not realize what terrorism is. It is in itself a violation of human rights. For example innocent people have the right to live. Al Qaeda denied that right to more than 3000 innocent American citizens on September 11, 2001. For us to be concerned with these people’s rights is a waste of time.

There are currently more than 500 people suspected of terrorism being held at Guantanamo Bay. Recently the Supreme Court heard arguments to determine what rights these prisoners had. Of the right to a lawyer, the right to a trial (the same kind as American’s receive), and the right of habeas corpus, the only one the Supreme Court granted to these prisoners was the right of habeas corpus. However, they intentionally did not spell out what this plea was to look like. It was left to the district courts to decide how to handle a prisoner that wants to know why he is being held.

In conclusion, there are two different types of terrorists. One that has "significant ties" to the United States and one that does not. That is what the Supreme Court has decided. Those that have significant ties to the United States are afforded due process under the rights granted in the Constitution. Those that do not have the right to due process only have the right to habeas corpus, though it remains to be seen what this looks like in court. In the former case, the one where due process is granted, it is still legal to delay due process long enough to ensure the safety of the American people.

Version 1


When the American people are in immanent danger of a terrorist attack, the US government should not have the power to protect its people. When it becomes necessary to keep a terrorist from attacking innocent people, there needs to be an elaborate system of red tape that one must go through to make that happen. Incomprehensible? Not to some.

Many people are somehow able to justify the above situation. It is quite puzzling how someone can believe that the United States should not have every right necessary to protect its people. The arguments that people use to support the need for warrants and paperwork when arresting a foreign national suspected of terrorism include the following: it is a violation of human rights, it violates their constitutional rights, and foreign nationals have the same rights as American citizens.

For someone to argue that it is a violation of human rights for someone suspected of terrorism, they must not realize what terrorism is. It is in itself a violation of human rights. For example innocent people have the right to live. Al Qaeda denied that right to more than 3000 innocent American citizens on September 11, 2001. For us to be concerned with these people’s rights is a waste of time.

The Supreme Court has heard cases regarding the rights of detainees at Guantanamo. Of the right to a lawyer, the right to a trial (the same kind as American’s receive), and the right of habeas corpus, the only one the Supreme Court granted to these prisoners was the right of habeas corpus. However, they intentionally did not spell out what this plea was to look like. It was left to the district courts to decide how to handle a prisoner that wants to know why he is being held.

There are more than 500 terrorists being held in Guantanamo and it would be a tragedy if America allowed them lawyers and trials on American soil. It would also be a horrible mistake to release the prisoners because it is a violation of their “rights” to hold them.

Asside from the basic rights afforded to every upstanding human, there are rights granted in the United States constitution. People argue that these rights are granted to all people, not only American citizens. However, the Supreme Court feels differently: “The notion that the U.S. Constitution affords due process and other rights to enemy aliens captured abroad and confined outside the sovereign territory of the United States is contrary to law and history.”


A conclusion is in the works