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No, the government does not have the right to incarcerate foreign nationals without reason. (final draft)

Political Science 1101
02/12/2005

The US government has the right to incarcerate foreign nationals suspected of terrorism without formal charges or the advice of an attorney.

In the past three years, the US government has elevated its aggression towards terrorism to provide safety for the American people. With this new level of aggression, a large number of foreign nationals have been incarcerated due to suspected terrorist activities. The dilemma for the US government is whether or not these suspects will be treated as prisoners of war or criminals against humanity.
When the President declares the country is at a state of war, typically it is with an opposing country. However, since a declaration on terrorism cannot be designated towards a certain country or territory, instead the US proclaims the country is in a state of emergency to validate their course of actions. Therefore, the US cannot incarcerate foreign nationals as prisoners of war. By definition, prisoners of war belong to a militia or volunteer corps forming a part of armed forces operating in or outside their own territory. Thus, foreign nationals must be treated as criminals with constitutional rights such as advisement from an attorney. The Constitution defines fundamental rights as the rights of “persons,” not citizens. "Persons" are entitled to protection against denials of equal protection, against unreasonable searches and seizures, and against losses of liberty without due process. Foreign nationals are “guests” when in the US and must be treated with their given constitutional rights. Without any evidence that these “guests” are affiliated with any militia group, they should be free to live their lives. It seems that even this discussion goes against the roots of the very foundation that America was built upon. Equality, embedded in the Constitution, is demanded for all people. The foreign nationals suspected of terrorism deserve the right to know what charges are brought upon them and the liberty to seek advice from an attorney.
Giving the US government the right to arrest foreign nationals without formal charges is equivalent to stripping them of their constitutional rights. The determination of who is qualified for such rights does not belong to the US government. In actuality, the determination was based on the founding fathers and written in the Constitution. However, this policy allows the military officials within the United States to incarcerate aliens on suspicion of terrorism alone, without having to show probable cause, and trying them entirely in secret without proof beyond a reasonable doubt. Under what jurisdiction can this policy be applied to these foreign nationals? If the government is going to allow aliens to be charged and imprisoned through the criminal justice system, then it must abide by the rules of that system. The law, such as giving their Miranda rights and being judged by jurors of their peers, is a requirement by the US courts. Bending and manipulating the courts in order to try aliens under false pretenses is unconstitutional.
Under this administration, Bush officials have compared this policy to the US Supreme Court's approval of President Roosevelt's decision in World War II. Nazi saboteurs were captured as they sought to smuggle explosives into Florida. They were tried and sentenced to death by a secret military tribunal. The difference between the two situations, however, is that there had already been a declaration of war. Today, it is not possible to declare war on terrorism; hence it is not possible to try foreign combatants engaged in acts of war. The allowance of such actions are usually never reviewed by the public but typically accepted because for fear of their safety. In actuality, the US government escapes scrutiny, and Bush’s administration is able to accomplish its agenda, not to wage war, but to control traffic of foreigners. Therefore, foreign nationals lose their rights as “persons” and the equality that is inherited with it.
The distorted logic that non-citizens have no constitutional rights is further exemplified by Attorney General John Ashcroft. He has stated that people tried in the new military courts do not require constitutional rights. However, there are no stipulations for executive officials to decide which people are restricted or permitted to have such rights. The US government is trying desperately to exercise their constitutional authority and take action according to what is in the best interest for the county. Congress considers the current situation in the aspect of war, and in wartime, national security is a priority. With that scope, they believe every action taken is constitutional and necessary. Solicitor General Theodore Olson once stated, "the detention of enemy combatants serves the vital wartime objectives of preventing captured combatants from continuing to aid the enemy and of yielding critical intelligence in advancement of the war effort." The US officials feel that the authority being exercised by President Bush is acceptable and expected. Especially after 2001, when Congress passed a joint resolution a week after the September 11 attacks authorizing all the actions the president had taken on the war on terror. The resolution allows the president to "use all necessary and appropriate force" against any person he determines to be involved in efforts to conduct further acts of terrorism against the US. The threat of terrorism has become apparent in the beginning of this century. Yet to sacrifice equality over order is extreme an unnecessary. The US began being committed to the principle that all people are endowed with certain inalienable rights, and that the government was created to secure these rights. Over the past century the very values we are trying to protect have been sacrificed.
The government has an obligation to protect the country and the people with their constitutional rights. American ideology is built upon these values that all men have certain unalienable rights. To violate the very rules that the country was founded on, would be a compromise. The threat of terrorism is eminent and the price of ignoring such a threat is costly as we have seen in the past few years. But the extreme actions being taken recently seem to violate essential principles, these principles that were the basis of forming such a super power in the world. Even though the threat of terror might be diminished against America, the values that America stands for will be compromised as well. In today’s age, there must be a certain level of security, but the Constitution must stand as precedent for every action taken. Incarceration without any charges is a clear violation of these rights. Restriction of legal advisement is a violation of these rights. Terrorism is a new element and the founding fathers probably never anticipated this type of threat. The Constitution is written in a vague format to compliment an ever changing present society. If the US government proceeds with this line of action, every person’s constitutional rights will be at risk. This policy must be redone taking into consideration the principle of the constitution.

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