A Time of Change
Everyone watched in bewilderment as the planes crashed into the twin towers in New York City. How could this happen to the United States of America, the world’s super-power? How could we allow the terrorists to get onto U.S. planes undetected? These are just some of the long lists of questions that raced through the countries top leaders as they scrambled to make some sense of the events of September 11, 2001.
Since then, numerous provisions have been made to prevent a re-occurrence of such an act against humanity on American soil. One such stipulation is the passing of the United States Patriot Act. This act was passed October 24, 2001, and has given Congress/ the President the power to “deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigating tools, and for other purposes”. There are over one thousand sections to this act, covering topics from increased funding for counterterrorism to “mandatory detention of suspected terrorists”. It is the latter that will be the topic of this paper. To what extent does the government have the power to detain people suspected of terrorism, for how long, and what legal rights do they have? Is it constitutional to “incarcerate foreign nationals suspected of terrorism without formal charges or the advice of an attorney”?
When national security, along with lives, is at stake, the government will attempt to find “loop-holes” in the United States Constitution, if necessary, to return order back to the country. This paper will outline the obligations the government has when dealing with incarceration and the judicial aspects of terrorism. However, the founders of this country left the constitution/ bill of rights in a very “flexible” manner, for instances just as this one, so that what needs to be done, for the sake of national security and well-being, can be done.
First, in Amendment five, it states that no person shall be “deprived of life, liberty, or property, without due process of law”. This is flexible in its own because “due process” is a challenging thing to define. There are some things that generally are guaranteed by this term, one of which is the “right to a fair and public trial conducted in a competent manner”. This now brings up the issues of what defines a “fair” trial. In my own opinion, a trial is not “fair” if no attorney is present for the defense. How can a person suspected of a terrorist crime possibly know his rights/how to defend himself without the advice of a lawyer? We are, of course, assuming innocence until proven guilty, therefore, there should be no reason to deny this right of legal advice. Whether this is what the founders of the constitution meant by fair, or not, is insignificant because the right to have “Assistance of Counsil for his defense” is guaranteed in the sixth amendment.
The national government has been given power to detain an arrestee preceding trial, by the 1984 Bail Reform Act, if the government can prove the person was potentially dangerous to other people. The government held that this does not violate the Fifth Amendment’s due process clause because protecting the community outweighs individual liberty. This act only applies to a very specific list of serious offenses, national security being one of them, and the government is required to show clear and convincing evidence of these serious felonies. If the government has this evidence, I do not see why they would not be allowed to hold this individual until their trial (a speedy trial is still required under this clause). However, I feel that it is very unconstitutional to hold a person for looking suspicious, or being suspected of something without proof.
Amendment Eight states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted”. This amendment does not make any distinction between bondable and non-bondable offenses, however. This was brought up in the case of United States vs. Salerno in 1987. The ruling in this trial was in favor of the national government maintaining that they had the right to incarcerate someone charged with certain felonies. Even though the Supreme Court could rule in the defenses favor for a very similar crime in the future, such as terrorism, it would be difficult, given that it would seem contradictory to the 1987 rulings.
In conclusion, since September 11, the United States government has made many attempts at making the U.S. a safer place to live. However, in the process, they may be infringing on the rights guaranteed by the founders of the country, and of the constitution. The U.S. Patriot Act, has left people in an outrage about issues in it that seem to undermine our basic freedoms, such as the right to privacy (the government is allowed the use of wire taps under the act). But is it possible to guarantee freedom form terrorism without violating some other rights?
I feel that the right to a jury and an attorney are rights that can not be taken away. They are the basis for the entire judicial branch of our government. Whether an individual is charged with jay-walking or suspected of terrorism, I believe every person has the right to be given legal council.
On the other hand, I believe that in serious felony cases, there should be non-bondable offenses. I do not believe this is undermining the rights the constitution allots the people of the United States. If national security is at stake, we need to step back and take a look at the big picture. If it is necessary to incarcerate an individual until a speedy trial can get under way, then that is exactly what should be done.