Granting the US government the right to incarcerate foreign nationals suspected of terrorism without formal charges or the advice of an attorney will lead to the violation of several fundamental human rights.
The US government has the right to incarcerate foreign nationals suspected of terrorism without formal charges or the advice of an attorney.
In recent times several events have led to the need for more stringent security measures being implemented in the US, especially concerning terrorism. Two such events are the destruction of the World Trade Center on September 11th 2001 (Schmemann, 2001) and the anthrax threat which followed shortly (Anthrax, 2001). Both events have been deemed terrorist activities, and have been the cause of much concern in the US. As a result there have been many proposed policies to help prevent similar future occurrences. One such policy states that the US government has the right to incarcerate foreign nationals suspected of terrorism without formal charges or the advice of an attorney. However, before agreeing or disagreeing with this policy, it is necessary to first define some of the terms in an attempt to get a better understanding of the claim.
Incarceration refers to the imprisonment of a person. A foreign national is described as one who is neither a citizen nor permanent resident alien of the US. Finally, terrorism can be defined as the unlawful use of force or violence against people or property with the intention of intimidating or coercing societies or governments, often for ideological or political reasons (www.dictionary.com). Thus, the policy can be reworded as: The US government has the right to imprison persons who are not citizens or permanent resident aliens of the US, suspected of the unlawful use of force or violence against people or property (with the intention of intimidating or coercing societies or governments, often for ideological or political reasons), without formal charges or the advice of an attorney.
After considering the revised proposal, I am forced to disagree with it in its present state for the following reasons: these actions can be considered unconstitutional; these drastic actions are no longer required as a result of the numerous requirements which now exist in order to enter the US; the policy leaves an avenue for the mistreatment of detainees; the policy disregards crucial questions and does not mention what level of suspicion is required to take action; the policy also does not answer the question on the purpose of incarceration.
As mentioned above, such a claim is in direct contradiction of two articles in the US Constitution. Articles V and VI of the Amendments are stated below.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The first article emphasizes “no person”. It does not specify American as opposed to a foreign national. It clearly points out that one is not to be incarcerated unless indicted by a grand jury, a process which requires that formal charges be presented. The second article grants an accused person the right to a fair and impartial trial, as opposed to direct imprisonment. Is the proposed policy suggesting that we go against all that the fathers of this great nation have fought for? One may argue that the constitution does not make provision for foreign nationals, and claim that the rights mentioned apply only to citizens and permanent resident aliens. I therefore ask, does this mean that the laws too were only written for nationals and not foreigners? Are foreigners free to break the laws without fearing prosecution? Of course not. Thus, if they are punishable by law, which the constitution upholds, they also have the right to assume legal constitutional privileges. The ultimate decision as to whether foreign nationals are due the constitutional privileges is still a matter of constitutional interpretation, but until the Supreme Court decides otherwise, I must consider the policy not only faulty but also unconstitutional.
Another reason why I must disagree with such a policy stems from the stringent checks and numerous procedures put in place in order for one to get admission to the US, which reduce the need for the drastic measures that the policy suggests. Examination of the extremely lengthy title eight of the United States Code of Federal Regulations gives a detailed list of reasons for which one may not be admitted to the US. It also spells out all the procedures that must be followed and the examinations which may be carried out on any person seeking to enter the US. It states how persons suspected of terrorism, involved with any terrorist organization, likely to commit a terrorist activity, or even related to any of the before mentioned are inadmissible to the US. Not only such persons but also persons who have committed various crimes before application for admission to the US are considered inadmissible. This just refers to a very short section which outlines terrorist activities and makes no mention of the numerous other reasons for which a person may be denied (United States Code Service, 2004). In general, there only needs to be a slight suspicion of foul play for someone to be refused. It may be said that this alone is ineffective, but coupled with the long waiting periods and increased background checks which have now been added, it can be considered solid grounds for refuting the incarceration of foreign nationals. These foreigners all had rigorous and comprehensive checks carried out on them, before they were admitted to the US. Thus, any foreign national suspected of terrorist involvement should not be incarcerated unless there are strong grounds for such actions and formal charges presented.
The policy can also be considered flawed because of the possibility of mistreatment. The detention of persons without charges leaves them vulnerable to actions such as torture and poor treatment. These persons would have neither legal representation nor advice, and would therefore be left to the mercy of the persons detaining them. Two notable occasions occurred when detained prisoners of war were poorly treated and humiliated when sent to Guantanamo Bay, Cuba and Abu Ghraib, Iraq. Some of these prisoners were humiliated in the worst ways, which included stripping and video taping them, and also beating. In some cases extreme interrogation techniques were believed to have been used. The detention of persons as suggested above also leaves the possibility of them being indefinitely detained. Who decides when they are to be released or under what conditions are they to be released? Such a situation still exists in Guantanamo Bay, Cuba, where some of the detainees remain confined despite advice from interrogation officers that they can provide no more useful information and should therefore be released (Cooper, 2005). Although these persons were not foreign nationals when detained, it illustrates the possible consequences of detaining persons without formal charges or legal advice. Such possible consequences include all forms of inhumanity. The only things needed for this to occur are misguided soldiers or rogue generals.
As mentioned earlier, several questions arise from the proposal. The first being the level of suspicion that is required to incarcerate an individual and the second being whose suspicions will be considered valid. Is it sufficient for the police to have suspicions, or do these suspicions have to come from the CIA. The term suspicion needs to be clarified, although I must admit, this would be extremely difficult to do. Another issue that arises from the policy is the difficulty in determining the purpose of their incarceration. Is it a punishment or are they incarcerated in order to investigate the suspicion?
On the bases of unlawfulness, possible inhumanities and the rejection of rights I am forced to reject the proposal and deem it severely flawed. The fact that it rejects some of the basic human rights is enough to brand it unreasonable and unlawful. I would, however, suggest that the policy be revised and several changes made. I would suggest that suspected persons be granted the right to legal advice if detained, and that the issues of questionable purposes for incarceration and insufficient suspicions also be addressed. Also I would suggest that this policy be extended not only to foreign nationals but also to citizens of America, as the threat of terrorism comes not only from outside but also from within the great nation itself. This was evident in 1995 when Timothy McVeigh was found responsible for the devastating bomb which destroyed many lives (Clark 1995). Therefore, based on two articles in the US Constitution, the respect for humanity and justice, the policy should not be implemented until it is properly revised.
Christopher Cooper. 2005. “In Guantanamo Camps, Detainees Languish In Vast Sea of Red Tape; Inmates Awaiting Freedom Are Caught In Uncertainty; Need for Improvisation; A Split Over Interrogation Methods,” The Asian Wall Street Journal A.1.
Serge Schmemann, “Hijacked Jets Destroy Twin Towers and Hit Pentagon.” New York Times Sept 2001;
http://www.nytimes.com/2001/09/12/nyregion/12PLAN.html?ex=1113796800&en=dd5f81059b5181aa&ei=5070 [Accessed 16 April 2005].
“The Search for Anthrax.” Federal Bureau of Investigation Nov 2001;
http://www.fbi.gov/anthrax/searchant.htm [Accessed 16 April 2005].
Tony Clark, “The worst terrorist attack on U.S. soil.” CNN April 1995;
http://www.cnn.com/US/OKC/daily/9512/12-30/index.html [Accessed 16 April 2005].
United States Code Service, "Title 8. Aliens and Nationality." GPO Access Aug 2004;
http://frwebgate1.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=682698311150+3+ 0+0&WAISaction=retrieve [Accessed 16 April 2005].
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