Counter Terrorism Constitutional and Legislative Issues - Research Paper Example

Counter Terrorism: Constitutional and Legislative Issues Brief Background: On September 11, the terrorist group – Al –Qaeda hijacked commercial airliners and attacked prominent targets - The World Trade Center and the Pentagon, in the United States, killing thousands of innocent people and destroying property worth millions, in the process. In response to such a treacherous act, the Congress passed a resolution which authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons” which the President “determines planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons", known as the AUMF (Authorization for Use of Military Force). The cases discussed below: Hamdi V Rumsfeld and Rumsfeld V/s Padilla are related to the trials of two individuals Hamdi and Padilla who were accused of participating in terrorist activities against the United States during the September 11, 2001 tragedy and subsequently detained for interrogation under the AUMF. This paper discusses the two cases, evaluates the holdings and judgment in each case, compares them and finally assesses the impact on the criminal justice system as well as on the individual’s civil rights. Hamdi V Rumsfeld: Case Summary Yaser Esam Hamdi, referrred to as Hamdi hereinafter for the purpose of this study, was an American citizen, born in Louisiana but lived with his family in Saudi Arabia. He was believed to have travelled to Afghanistan during 2001 and lived there. He was captured by the Northern Alliance - a coalition of military groups opposed to the Taliban government, and turned over to the United States military for further action. According to the U.S. Government, Hamdi was detained initially to collect information from him regarding the details of his stay in Afghanistan and was subsequently transferred to the U.S. Naval Base in Guantanamo Bay in January 2002. In April 2002, the government learned that Hamdi was a U.S. citizen and was transferred to a naval brig in Norfolk, Virgina. The Government had detained him indefinitely devoid of any formal charges or proceedings, unless and until the counsel determines any further process on him. It justified his detention by claiming that Hamdi was an "enemy combatant" and such a detention is valid under the AUMF. In June 2002, Essam Fouad Hamdi, Hamdi's father, filed a petition of habeas corpus under 28 U.S.C & 2241 in the Eastern District of Virginia, naming the petitioners as his son and himself as his next friend. The father alleged that he had no communication with his son, ever since his detention by the Government in 2001 and that his son was denied any access to legal counsel and that they were not informed of any pending legal proceedings against him. The petition further stated that the detention was not legal and Hamdi being an American citizen deserves the right to be protected fully by the U.S. Constitution, and hence demanded access to an impartial tribunal, assistance of counsel and accused the detainers of violating the Fifth and Fourteenth Amendments to the U.S. Constitution. Explaining his son’s visit to Afghanistan, his father claimed that Hamdi had been in that country less than two months before the September 11 attack, and hence could not have received military training in such a short period, besides he was travelling there for the first time, and cited his lack of experience as the reason for being trapped in the military operation that began, in response to the terror strikes. In response to these allegations, Michael Mobbs who identified himself as the Special Advisor to the Undersecretary of Defense for Policy, and hence substantiating his authority, went on to provide sole evidentiary support to the Government justifying Hamdi's detention on the grounds that Hamdi had travelled to Afghanistan in July or August 2001, affiliated to the Taliban military unit ever since, and surrendered his Kalishnikov assault rifle to the U.S. armed forces (which he later confirmed), and hence his detention by the Government is justified under the AUMF. The District Court however rejected the evidence citing the Due Process Clause and questioned the credibility of the sole evidence against the detainee as sufficient or allowing for a meaningful judicial review. In reply, the Fourth Circuit stated that in view of the fact that Hamdi was captured in an active combat zone in a foreign theater of conflict, the need for a factual inquiry or evidentiary hearing which allows Hamdi to be heard, is unsubstantiated. The Mobbs Declaration, concluded that the evidences against Hamdi granted adequate reasons for his arrest and provided adequate grounds to the Government, to detain him, in view of the President's war powers which allows for enemy combatants to be detained in the interests of the nation. The incidence of Hamdi’s arrest, however brought to the fore, an important question related to the arrest and detainment of an American citizen and his being labeled as an ‘enemy combatant’. It raised questions regarding the authorization of the for detention and whether such an individual be constitutionally entitled to be given the privileges of citizenship, and whether his detention is within the purview of law. Holdings and Reasoning Geneva Convention In response to Hamdi's argument citing the Geneva convention, and questioning the right of authorities to detain Hamdi - an American citizen, the court stated that in such an event where the detention was on account of Hamdi being an 'enemy combatant' which offers a substantial ground for his arrest. The court rejected Hamdi's Geneva Convention claim stating that it is not self-executing and even if it were, it does not preclude the authorities from detaining Hamdi until the hostilities end. Rights of a citizen Another contention by Hamdi, that his detention was unauthorized and that he was constitutionally entitled to be released since he is an American citizen and detained on American soil, the court rejected the plea citing that any individual regardless of his/her citizenship who takes up arms against the country must be properly designated as an 'enemy combatant' and the privilege of citizenship sought by Hamdi can afford him a limited judicial inquiry, purely limited to determine its legality under the powers of the political branches. Congressional Authorization On the question of the express Congressional authorization which is required for detaining an individual the government maintained that no such authorization is required since the executives have full authority to detain such individuals in accordance with the Article II of the Constitution. Rights under 18 U.S.C. § 4001(a) Hamdi’s argument that his detention is forbidden by 18 U.S.C. § 4001(a) which states that "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress" was refuted by the government stating that Hamdi was detained pursuant to the AUMF which is an explicit Congressional authorization and hence is valid. It further states that and that there is no bar whatsoever which excuses the citizens of the country, labeled as ‘enemy combatants’ from such a detention. AUMF & indefinite detention Hamdi argued that the AUMF does not authorize indefinite detention for the purpose of interrogation. It was held that although the AUMF does not expressly authorize indefinite detention, it allowed the use of all necessary and appropriate force against such individuals to prevent them from any future acts of international terrorism against the United States by such a person. The release of Hamdi, who was detained for participating in militant activities against the U.S., could put the nation’s security in danger and hence he could not be released for as long as the hostilities continue. It is further argued that if released Hamdi may rejoin the forces. Hence his detention is necessary in the interest of the nation. Furthermore, Article 118 of the Geneva Convention (III) which deals with the detention of prisoners allows for detention of prisoners for 'as long as the hostilities may continue" and since the war on terror has not yet ceased, Hamdi’s detention is valid and legal. It is further stated that The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force,” and therefore are authorized by the AUMF. Arguments related to the Fifth and Fourteenth Amendments In response to Hamdi's argument that he owes a meaningful and timely hearing stating that his extra-judicial detention which begins and ends with the submission of an affidavit based on third hearsay are in contradiction to the Fifth and Fourteenth Amendments; the court countered that any more process, over and above that which was already granted to Hamdi, would be both - unworkable as well as constitutionally intolerable. The Supreme Court ruled that the detainee in such cases had the right to file a writ petition challenging the legality of their confinement. Conclusion: This case had competing concerns – that of protecting the civil and human rights of an individual, against prolonged / indefinite detention, who also happens to be a United States Citizen, and that of safeguarding the interests of the nation against the detainee who was alleged to be an enemy combatant. On the basis of the various arguments from both the sides, it was held that although the risk of harming the interests of an individual detainee charged of such serious crime, on the basis of limited yet substantial evidence, is relatively higher, the fact that his / her release from such indefinite detention prior to the end of hostilities, of which the detainee was a part, could jeopardize the interests of the nation and its citizens. Hence, in order to strike a balance, the court allowed for a just and fair opportunity for the detainee by serving him a notice and allowing him the opportunity to rebut the Government's factual assertions before a neutral decision maker. On the other hand it was also held that in such a situation where the individual charged with such serious offences who are also citizens, the charges levied against him be regarded as legitimate provided the evidences are substantial and the detainee has been given a fair opportunity to rebut the said charges. However, in such a case, the onus to prove innocence, would be shifted to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria - that of an enemy combatant. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. Rumsfeld V Padilla: Case Summary Jose Padilla, an American citizen was apprehended by the U.S. federal agents on May 8, 2002 on his return from Pakistan to Chicago's O'Hare International Airport. He was issued a witness warrant by the U.S. District Court in connection with the grand jury investigation into the September 11 terrorist attacks. Padilla was then subsequently transferred to New York where he was again detained in federal criminal custody. Padilla moved to vacate the witness warrant on May 22 through an appointed counsel. In the following month, on June 9, Padilla was labeled an 'enemy combatant' in accordance with an order issued by the President to the Secretary of Defense, Donald Rumsfeld. Subsequently he was moved from civilian custody in New York to a criminal brig in South Carolina, where he was detained for an indefinite period without any charges or access to legal counsel. On December 18, 2003 the U.S. court of appeals held that such a detention on an American citizen who was arrested on American soil was unlawful and that his arrest is not in conformity with the constitutional rights held by him (Padilla) and sought his release within 30 days. However, such a release was not granted and instead the case was moved further to the Supreme Court. Holdings and Reasoning On June 11, Padilla's counsel filed a petition of the habeas corpus in the Southern District under 28 U.S.C. § 2241 alleging that the military detention of Padilla violates the Fourth, Fifth and Sixth Amendments as well as the suspension clause, Article I, § 9, clause 2, of the United States Constitution. The petition named President Bush, Secretary of Defense – Donald Rumsfeld, and Commander of the consolidated naval brig (where the accused was held) Commander Marr, as the key respondents. However the Government moved to dismiss the charges, stating that Commander Marr is the only rightful respondent, further claiming that the District court lacked proper jurisdiction over her, since she was located outside the Southern District. The Government further contended that the military detention of Padilla was justified since the President holds full authority to do so in accordance with the Commander in Chief clause of the Constitution and under the AUMF. The District court in its decision announced in December 2002, reversed that the Government's contention that commander Marr was the proper respondent in this case, and instead stated that the Secretary – Rumsfeld was the proper respondent owing to his direct involvement in the case. The decision was arrived at, on the grounds that Padilla was in the custody of Commander Marr under the instructions of the Secretary of Defense and had personal involvement with him, hence was the appropriate respondent to Padilla's habeas petition in this case. Furthermore, regarding the authority of the Government to detain American citizens accused of being an enemy combatant, the court held that the President holds the right to detain such individuals captured on American soil in special circumstances, such as during times of war. The Court of Appeals for the second circuit too, supported the decision of the lower court regarding the Secretary being the rightful respondent in this case. It stated that the Secretary of Defense, Donald Rumsfeld was the rightful respondent to the habeas petition, since the petitioner was detained for reasons other than federal criminal violations. The Supreme Court in this case, recognized the exception to the rule that only the immediate physical custodian can be the rightful respondent. The Supreme Court argued that Rumsfeld was the actual custodian of the petitioner, rather than Commander Marr, since he had the exclusive right and control over the detention and that his personal involvement could be proved from the fact that it was under his guidance and instruction that the accused was detained. Regarding the question of the President’s authority to detain Padilla, the court held that neither the President’s Commander in Chief nor the AUMF had any legal authority to detain any American citizen captured on American soil and accordingly ordered the Secretary to release Padilla from detention within thirty days. Conclusion: This case sought to answer two fundamental questions: regarding the appropriate respondent to the petitioner and the right to detain an American citizen captured on American soil. In the first case, the court held that the appropriate respondent was the Secretary, and not Commander Marr who had the actual physical custody of the petitioner. It can be stated that in case of the habeas petition, the respondent can be usually, one person, who has the ability to physically produce the prisoner before the habeas court. In case of Padilla, the rule of the immediate physical custodian be represented as the respondent does not apply, when viewed against the custody or in this case 'unlawful detention' being challenged. The habeas petition was filed by the petitioner challenged his unlawful and indefinite detention by the government, an act which was controlled by the Secretary who held the power to release or detain the petitioner rather than his immediate physical custodian who was merely following orders. In the second case however, the court ruled that the petitioner’s detention was unlawful and be released immediately (within 30 days). This indicates that the Supreme Court upheld the decision of detaining American citizens captured on American soil as a preventive detention, in a bid to incapacitate the accused from their prospective involvement in acts of terror against American people or the country. Furthermore the court also expressly disagreed on the role and authority of the President, under the AUMF, to detain individuals outside of the battlefield and that they cannot be detained devoid of any legal counsel. As citizens they hold the right to appropriate counsel and to rebut the charges levied against them. Comparison and Evaluation: Both the cases: Hamdi V Rumsfeld and Rumsfeld V Padilla, were related to the detention of American citizens who were alleged to be enemy combatants, under the Authorization of Military Forces (AUMF) passed by the congress in the wake of the September 11 terrorist attacks, which gave the President congressional power for such detention. The accused in both the cases filed for habeas petition in their respective courts seeking release from detention and citing that their detention was against the constitution and that they were denied the basic rights, ordinarily available to a U.S. citizen. Both of them filed the habeas petition disputing their status as enemy combatants. Although, in case of Hamdi, the district court did not grant the petitioner, access to counsel but in turn, ordered the government to offer further evidence to prove the charges levied against him; while in case of Padilla, the court his immediate release stating that the grounds under which he was detained was not appropriate and that they deserved an equal opportunity to prove their innocence. The courts held that the evidence provided by the government, even though limited and based on hearsay could be regarded as substantial and acceptable in court, only if, the petitioners were afforded equal and just right to rebut the charges levied against them and to file a petition in front of a neutral decision maker. Despite such a ruling, the court refused to grant Hamdi, the full array of procedures, which he deserved as a citizen, but instead stated that he must receive a factual notice of the assertions. Regarding their status as enemy combatants, the court held that it cannot act on the basis of hearsay or the limited evidence which was presented in the court. It was held that the evidences presented in the form of proof could not be considered as substantial and in fact could only be considered for review rather than as the ultimate proof. Furthermore, the courts also refuted the government’s claim that the detention of the accused was under the AUMF which grants the President, exclusive rights for such a detention. With respect to the indefinite detention of individuals alleged to be enemy combatants, the courts held that indefinite detention of individuals is not authorized under such circumstances although necessary and appropriate force can be applied to prevent the accused from joining the enemy and engaging in conflict against the country or its citizens. In both the cases, the court held that the detention is legal only so long as the hostilities continue and beyond that, the accused have to be released. It further stated that although the exact date and time of cessation of conflict cannot be accurately determined, it also stated that the authority of the President to hold the accused in indefinite detention during times of war is unjust and the circumstances of the war cannot be used by the President as a ‘blank check’ for indefinite confinement of individuals in order to protect the rights of the nation or its citizens. Thus in both the cases, the courts did not discuss the issue of the exclusive authority held by the President to detain individuals alleged to be involved in terrorist activities and labeled as ‘enemy combatants’ despite the express congressional authorization to do so, to prevent them from launching further attacks on the nation. While in case of Hamdi the court acknowledged the need for presenting a factual notice asserting the charges against him, in case of Padilla, the government granted the right to appeal and rebut the charges made against him. Effect on Criminal Justice System and Individual’s Civil Rights These cases indicate the need to differentiate powers, particularly in the wake of emergency where the individual's civil rights are under heightened threat, as observed in the two cases discussed above. The two accused Hamdi and Padilla were held in detention for indefinite period without any access to legal counsel thus violating their civil rights as legal U.S. citizens which entitles them to protect their interests and a fair opportunity to prove their innocence in front of a neutral decision maker. The fact that their detention was justified by the government as lawful and in the best interests of the nation as well as its citizens, further complicated the matter since the two accused were alleged to be ‘enemy combatants’ – a serious charge in the wake of the terrorist attack and since their release could indeed jeopardize the lives of innocent individuals, if they returned to the battlefield, was even more cause for concern. The civil rights of the individuals can be jeopardized in the event of conflicting interests where the highest power, the President, holds the right to control the detention of individuals, for indefinite periods, an act which is incompatible with the express or implied will of the parties concerned. Furthermore according to Finkelman (2006): the "tactics employed to deal with emergency may also directly infringe upon civil liberties through three mechanisms or a combination of them: legislation granting the government greater powers of surveillance or limiting the freedom of association, executive action contravening or exceeding the scope of statutes designed to protect certain rights, or reduction in the compass of those liberties that are constitutionally based” (Pp. 496). Furthermore the rulings in both the cases which allowed the accused the right to counsel and rebut the charges levied against them, and even the acquittal of one of the accused, (Padilla) in the face of the on- going war on terror and the direct threat to national security, which such an acquittal entails, reaffirm the fact that the court stressed on protecting the individual’s civil rights even during times of emergency. The war on terror launched by the U.S. in the wake of the terror strikes and the subsequent passing of laws which granted the government, exclusive rights in the name of defending the nation and its citizens, were regarded as oppressive and unlawful in nature and as a gross violation of the individual’s civil liberties. The decisions in the two cases discussed above reinstate the basic civil rights to the individuals. According to Justice Sandra O’Connor (in Hall, McGuire, 2005) for the court in Hamdi V Rumsfeld declared that: “A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens. It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad" (Pp. 369) Thus as observed in both the cases, the decisions of the courts upheld the foundations of the American criminal justice system which is based on ‘laws’ rather than ‘individuals’ – these very laws shape the society we live in, and hence hold immense significance in the manner in which they are formed and applied in cases such as these. The laws of the nation, are meant to offer a fair and just opportunity to all its citizens and other individuals regardless of their circumstances, a fact which was reinstated in the decisions of Padilla as well as Hamdi who were both charged for serious offences and yet afforded a fair opportunity to rebut the charges levied against them, thus upholding the very foundation of the country’s fair and just criminal justice system. References: Finkelman, P., (2006). Encyclopedia of American Civil Liberties, CRC Press, Pp. 493 – 496 Hall, K., McGuire, K. T., (2005). The Judicial Branch, Oxford University Press, Pp. 365 - 370 Bibliography Gaines, L. K., Miller, R. L., (2008). Criminal Justice in Action, CENGAGE Learning Publication, Pp. 553 - 557 Johnson, L. K., (2010). The Oxford Handbook of National Security Intelligence, Oxford University Press, Pp. 328, 336 – 43 Sabbah, N., Cain, B. E., (2007). 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