A time for 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-occurance of such an act against humanity on U.S. 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 these suspects have? Is it constitutional to “incarcerate foreign nationals suspected of terrorism without formal charges or the advice of an attorney”?
When national security, and lives, are at stake, the government will attempt to find “loop-holes” in the United States Constitution. This policy 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: 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 jury (a speedy trial is still required under this clause). I believe it was an unbelievable mistake on the part of the U.S. government when they allowed 13 Bin Ladens to leave the country in the days following September 11, 2001. If the government could hold them due to the 1984 Bail Reform Act, then why didn't they? There was enough evidence to allow such a detainment, obviously, since this was the very family of the "most wanted terrorist" Osama Bin Laden. Would it have been so unconstitutional to just ask his family members a couple of questions, to take a couple of hours out of their busy day so that we could uncover the truth about this massive terrorist attack? The American public would never allow such an escape to happen, had they been informed. This can be compared to the Eric Rudolph case (abortion clinic bombings, along with the 1996 Olympic games bombing). How do you think the American citizens would have responded if the F.B.I. said that this killer, Eric, is on the loose, but we are not going to investigate further, nor are we going to interrogate his brother, Daniel, or any other family members! I am pretty sure they would side with me, in saying, that a proper interrogation is many times necessary to discover the truth of these crimes. The reason the United States allowed these Bin Ladens to leave U.S. soil without even the slightest thought of bringing them in for investigation is a question that will probably never be answered, unfortunately. On the other hand, I feel that it is very unconstitutional to completely detain/incarcerate a person for simply looking suspicious, or being suspected of something without proof. The events that went on in Guantanamo Bay, where approximately 100 prisoners of war were held by the United States Defense Department, and transferred to Camp Delta, where they were detained for even longer without lawyers, or any hope of a trial at all is extremely unconstitutional. If the Defense Department were prepared to allot them attorneys, and question these prisoners, I believe they would have not stripped them of their rights, however, to deny them these things is an infringement on those civil liberties guaranteed by the Constitution of the United States. .
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 is a loop-hole that the judiciary sector of the U.S. government can use. While “excessive bail” can not be mandated, no bail at all can be allowed for crimes such as murder, sexual battery or kidnapping. I believe that although this sounds contridictiory, that it is not allowed to demand 2 million dollars for someone to be allowed out of jail, but it is allowed to say that no amount of money at all will free them from jail, this rule is necessary. I think the United States government should have the right to hold those that are guilty in jail until their court date. Another ambiguity with Amendment eight is the fact that "excessive" is not clearly defined. What some people may consider extremely excessive, the courts may not. This is just another example of the vagueness of the Constitution, another way the government can interpret it how they want. I feel that this is very necessary, though, because a crime such as a terrorist attack, where people;s lives are taken, is an excessive crime. If it takes a large bail or fine in order to hold a terrorist in the country, well, then, it should be done.
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 from terrorism without violating some other rights? Is this not just the age-old question of which is more important-freedom or order? When we are dealing with the saving of thousands of lives, I think it is fair to say that most people, including myself, wouldn't mind losing some of their freedoms to gain this magnitude of safety.
To sum up, 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.