Protecting Homeland Security - Assignment Example

PROTECTING HOMELAND SECURITY Introduction: The paper discusses the rights of detainees of Guantanamo Bay through discussing various cases that are related to them. Six questions pertaining to the subject have been answered in the following paragraphs. Does Ex Parte Quirin justify the treatment of detainees at Guantanamo Bay? In the case of Ex Parte Quirin (1942) , the Supreme Court of United States of America ruled in favor of the jurisdiction of United States Military tribunal which was trying several Nazi agents who were part of the failed Plan ‘Operation Pastorius’. The Supreme Court of United States of America drew the line between lawful combatants and unlawful combatants of United States of America. The lawful combatants were to be treated as prisoners of war ( POW) during their detention. Unlawful combatants on the other hand should be detained and also to be tried and punished by the military tribunals for their acts which rendered their belligerency unlawful. In effect unlawful combatants should not be treated simply as prisoners of war ( POW ). The detainees at Guantanamo Bay prison facilities have been classified as ‘ enemy combatants ‘ by United States of America. They have also been classified as unlawful belligerents who can only avail of minimum protection under the Geneva Conventions which the United States ratified in 1949. The case of Ex parte Quirin justifies the trial of detainees at Guantanamo Bay by the Military Tribunal. This is because the detainees at Guantanamo Bay are unlawful “enemy combatants”. However, it does not justify such treatments as holding the detainees of Guantanamo Bay incommunicado and denial of access to counsel to them. The case of Ex parte Quirin only justifies the trial of the detainees by appropriate Military commissions. The defendants in the case of Ex-Parte Quirin were represented by counsels. So the case does not justify the denial of representation by counsels in front of the military commissions for the detainees at Guantanamo Bay Prison camp. The case of Ex-Parte Quirin only justifies the detention of prisoners at Guantanamo Bay for trial by the Military Tribunal. The detainees have all the rights for a fair trial by the Military commission or tribunal. Can one see a distinction between Quirin and his fellow "enemy combatants" and those detained at Guantanamo Bay? Richard Quirin and his fellow “enemy combatants” were part of Operation Pastorius. The aim of Operation Pastorius was to stage sabotage attacks on American economic targets like the hydroelectric plant at Niagara falls, Tennessee and Illinois plants of Aluminum company of America and other such targets of economic importance (Rehnquist, William H 184). Out of the eight “enemy combatants” who were part of ‘Operation Pastorius’ one (Herbert Haupt) was an American citizen. The detainees at Guantanamo Bay are those who have been held on charges of indulging in “terrorist activities” against the United States of America. Many of the detainees are Taliban and Al- Qaeda fighters captured during America’s war in Afghanistan and Iraq. The detainees at Guantanamo bay have also been classified as “unlawful enemy combatants”. Quirin and his fellow combatants were also classified as “unlawful enemy combatants” An unlawful combatant is a civilian who engages directly in armed conflict with a state. Such an act is violation of the International Humanitarian Law. The unlawful combatant is therefore subject to trial under the domestic laws of the detaining state against whom the armed conflict was directed. In its decision in the case of Ex-Parte Quirin (1942 ), the Supreme Court of United States of America stated that the law of war distinguishes between lawful and unlawful enemy combatants. Therefore there is no legal and technical distinction between Quirin and his fellow “enemy combatants” and those detained at Guantanamo Bay prison camp. Both have been classifies as unlawful “enemy combatants.” How did the Second Circuit Court of Appeals distinguish them in Padilla v. Rumsfeld? Jose Padilla was an American citizen who was arrested in 2002 at O’Hare International Airport, Chicago while he was returning from Pakistan. His initial detention was on the basis that he was a material witness in the investigation of the United States government into the network of Al-Qaeda terrorist organization. The basis of the detention of Padilla was later changed as he was declared an “enemy combatant “by the Department of Defense. The basis of this classification was the report of the Federal Bureau of Investigation that said, Jose Padilla was returning to United States of America with the intention of carrying out terrorist attacks. The classification as an enemy combatant meant that Jose Padilla could be held indefinitely in prison without access to courts or attorneys for defense. In the case of Padilla versus Rumsfeld, the United States Second Circuit Court of Appeal ruled that in spite of the precedent set in the case of Ex-parte Quirin, the President of United States of America, in his capacity as Commander-in-chief of the Armed forces, lacks the inherent constitutional authority to detain American citizens on American soil outside the zone of combat. Instead of using the case of Ex-Parte Quirin as precedent, the United States Second Circuit Court of Appeal cited the case of Youngstown Sheet & Tube company versus Sawyer ( 1952 ). In the case of Youngstown Sheet & Tube Company versus Sawyer (1952) the Supreme Court had limited the power of the President of United States, in his capacity as Commander-In-Chief of Armed forces, to seize private property during times of crisis like war with an enemy nation. A divided Second Circuits of Panel reversed the decision of the United States District Court for the Southern District of New York on the grounds that the Federal Non-Detention Act states that no citizen of United States of America can be detained on grounds other than those pursuant to an Act of United States Congress. The United States Second Circuit court also stated in its decision that the Article 1, Section 9, Clause 2 of the United States Constitution vests the authority to curb civil rights and liberties during times of crisis, like that of war, into the United States Congress and not the President (Darmer, K. M.; Baird, R. M. and Rosenbaum, S. E.. 74) . The United States Second Court of Appeal therefore distinguished between Jose Padilla and Quirin et al. on three grounds. These are: 1) Padilla was a United States Citizen. 2) Padilla was arrested in United States of America outside the zone of combat. 3) He was therefore eligible for the rights granted under the Non-Detention Act. 4) The authority to curb civil rights and liberties during times of crisis, like war, was vested in United States Congress and not in the President of United States of America. Is the distinction significant enough to make a difference in the constitutional justification for the rights afforded to those detained at Guantanamo Bay? The distinctions made by the United States Second Circuits Court in the case of Padilla versus Rumsfeld are significant enough to make a difference in the constitutional justification for the rights afforded to those detained at Guantanamo Bay. The courts ruling that the authority to curb civil rights and liberties during times of crisis, like war, was vested in the United States Congress and not in the President of United States of America challenges the classification of “unlawful enemy combatants” of the detainees at Guantanamo Bay by the President of United States of America. The classification as unlawful enemy combatant has the effect of curbing the civil rights and liberties of those classified as such. They can even be detained indefinitely without access to courts or legal counsel. The distinction drawn in this case by the United States Second Circuit Court also makes the American citizens detained at Guantanamo Bay eligible for the rights granted to them under the Non-Detention Act. However, these distinctions were drawn in the case of Jose Padilla who was a citizen of United States of America. This may limit the significance of this decision for the 300 or so detainees at Guantanamo Bay who are not citizens of America. Are their additional rights, besides trial by military tribunals , that are being denied to detainees at Guantanamo Bay? Before the Supreme Court ruling in Hamdi versus Rumsfeld (2004), the detainees at Guantanamo Bay were not allowed the minimum rights under the Geneva Convention. The detainees at Guantanamo Bay could be held indefinitely without access to courts or defense attorneys. This effectively meant that the detainees at Guantanamo Bay had lost their right to habeas corpus. The right to habeas corpus is the right of the individual to be brought before a court of law for decision on the validity of his or her detention (White, J. R . 42) There are two categories of detainees at Guantanamo Bay. The first category is of those who have been charged by the military commissions. The second category is of those who have still not been charged by the military commissions. The prisoners in both the categories at the Guantanamo Bay could be held indefinitely without access to attorneys or courts of law. The accused in Guantanamo Bay prison center are also not allowed complete access to all the evidences used against them. The presiding officers of the Guantanamo Bay military commissions are authorized to base their decisions on secret evidences that the accused cannot have access to and therefore cannot refute. Before the enactment of the Detainee Treatment Act, the military commissions were also authorized to accept that evidence that were extracted from the detainees through torture and coercive interrogation techniques. After the passage of the Detainee Treatment Act, the Guantanamo Bay military commissions can no longer consider evidences that have been extracted through coercive techniques or torture. The accused at Guantanamo Bay are also not permitted a free choice of attorneys. They can have as attorneys either military lawyers or civil attorneys who are eligible under the secret security clearance (Nacos, Brigitte L 68). What minimal rights did the Supreme Court give detainees in Hamdi v. Rumsfeld? The Supreme Court in the case of Hamdi versus Rumsfeld (2004) grants the detainees at Guantanamo Bay certain minimum rights. The basis of rights is the Geneva Convention which the United States ratified in the year 1949. The Supreme Court in its decision upheld the power of the government to detain enemy combatants but also ruled that the citizens of United States who are detained in Guantanamo Bay also have the right to challenge their enemy combatant status before an impartial judge. The Supreme Court in its decision says that all detainees of Guantanamo Bay, whether they are citizens or not citizens of United States of America, have the right to habeas corpus. The alleged enemy combatant detainees in Guantanamo Bay prison camp have also been given the right to legal counsel by the decision of the Supreme Court of United States in the case of Hamdi versus Rumsfeld. This right to legal counsel has been granted to all the detainees at Guantanamo Bay, whether U.S. citizens or not. For those detainees of Guantanamo Bay, who have not been charged, the Supreme Court in the case of Hamdi versus Rumsfeld was of the opinion that they should be treated in accordance with the Geneva Convention and other relevant international treaties. The Supreme Court upheld that under the Authorization for use of Military Force against Iraq resolution ( 2002) enacted by the United States Congress after the September 11 attacks, the United States government is authorized to hold enemy combatants in detention until the cessation of hostilities but not indefinitely. The Supreme Court in its decision also held that such protective detention of enemy combatants should apply to U.S, citizens as well as non-citizens. Conclusion: The issue of the legal rights of Guantanamo Bay detainees continues to rage on. The situation is a complicated one. The principles of jurisprudence however uphold the right of the detainees to have a fair trial. References: White, J. R. Defending the Homeland: Domestic Intelligence, Law Enforcement, and Security. Belmont CA: Wadsworth/Thomson Learning. Print. 2004 Nacos, Brigitte L. Terrorism and Counterterrorism. New York NY: Longman/Pearson. Print. 2010. Darmer, K. M.; Baird, R. M. and Rosenbaum, S. E., (eds). Civil Liberties vs. National Security in a Post 9/11 World. Amherst NY: Prometheus Books. Print. 2004. Rehnquist, William H. All the Laws but One: Civil Liberties in Wartime. New York: William Morrow & Co. Print. 1998. Jackson A., Niday, II . "The War against Terror as War against the Constitution". Canadian Review of American Studies 38 (1). Print. 2008. Read More