National Security versus Civil Liberty

 

National Security versus Civil Liberty

 

The Constitutionality of the Use of Racial Profiling, Seizure, and Detainment in the War on Terrorism

Facts of Padilla v. Rumsfeld, 542 U.S. 426

Jose Padilla, an American citizen, was subjected to detention at Chicago’s O’Hare International Airport following his trip from Pakistan. The detention was on claims that Padilla was a material witness for an investigation by the government and a case concerning an al Qaeda terrorist unit. Due to his alleged engagement, the Department of Defense declared him an enemy combatant. Consequently, he was detained indefinitely, with a suspension of the habeas corpus. Padilla’s counsel filed a suit on his behalf for habeas corpus while under detention as a material witness – he was not allowed a counsel while held as an enemy combatant. Even though the U.S. District Court for New York’s Southern District held that Padilla’s counsel would file a petition on his behalf, the Court ruled that the Department of Defense was empowered to detain Padilla indefinitely under the Congress’s Authorization for Use of Military Force and other statutory authorizations. The issue before the Supreme Court was whether the President had sufficient authorization to detain Padilla as an enemy combatant.

Facts of Ex Parte Quirin, United States Supreme Court 317 U.S. 1(1942)

During the Second World War, a unit of soldiers from Hitler’s camp tried to sabotage the US government by taking their submarines to the shores of America secretly. They took off their attires and took with them other military regalia. Their government had given them strict orders to demolish industries that manufactured war related products and also all military facilities in America. On the contrary, they were captured and detained. A Presidential Order in the year 1942 led to the appointment of a commission that tried them for violation of the law of war and Congressional Article of War. Petitioners petitioned for habeas corpus supreme court of America.

Facts of Hamdi v. Rumsfeld, 542 U.S. 507

Yaser Hamdi was detained by the U.S. military in Afghanistan. The grounds for his arrest were that he had fought for the Taliban against the United States. The military declared him an enemy combatant and transported him to Guantanamo Bay, and afterwards to the U.S. following the discovery that he was an American citizen. Hamdi’s counsel petitioned for a writ of certiorari, initially on his own and later for his father, in the bid to have his detention declared unconstitutional. The counsel claimed that the detention was in violation of the right to Due Process under the Fifth Amendment. The government argued that it had power, during war, to declare individuals fighting against the U.S. enemy combatants as well as restrain their access to court. The district court held in favor of Hamdi, and consequently ordered the government to acquit him. This ruling was overturned by the appeal, on grounds that the separation of powers expected the judicial branch to exercise restraint during wartime.

Assessment of Quirin’s justification of the treatment of detainees at Guantanamo Bay

The U.S. government seeks to justify its treatment of detainees at Guantanamo Bay. Their justification is based on the Quirin case which is based on WW2 circumstances. These were the times before the development of the Humanitarian law. A man by the name Churchill proposed the killing of Nazi leaders as soon as they would be caught, but another suggestion by Stalin convinced President Roosevelt to try them in a trial he thought was not very judicial (Butler, 2007).

The situation in which the Nazi soldiers captured were is quite different from that of the prisoners at Guantanamo Bay. Today, no war has been authorized by the congress. Prisoners at Guantanamo Bay have been prosecuted for committing crimes that were never considered crimes related to war (Darmer, Baird & Rosenbaum, 2004).

Today, prisoners at Guantanamo Bay are denied personal consultation to their lawyers, accesing important evidence and judicial review. They also don’t have the right to legally protest their detention. This is unlike with the Nazis-they were given all these privileges. This treatment is blind to the fact that the Nazis were alien enemies while the prisoners at Guantanamo Bay are not. They are not a uniform group because they came from different battlefields-from Afghanistan and other places. The Quirin case does not support the happenings at Guantanamo Bay. Many scholars of law in the US have discredited the Quirin Case as being a bad precedent. Accordingly, it is an insult to the progress made in humanitarian law over a period of more than fifty years (Darmer, Baird & Rosenbaum, 2004).

Additional rights being denied detainees at Guantanamo Bay according to the Padilla case

Detainees were denied the right to be free from torture and abuse. According to the American Civil Liberties Union (ACLU), Padilla had been subjected to sensory deprivation, sleep deprivation, and painful stress positions which caused him psychological and physical trauma. These are termed as psychological and physical abuse and torture (Elsea, 2013). In addition, Padilla was denied contact with his family or lawyers while he was being interrogated. Moreover, he was denied freedom of practicing his Islamic religion, and his Quran was later confiscated. This resulted in severe deterioration of his mental state which made him refuse to meet with his family or lawyers, at the fear that it would cause him to go back to military custody (Elsea, 2013).
Additional rights given to detainees in the Hamdi case

The additional right given to detainees in the Hamdi case involves the opportunity to challenge their detention before an impartial court. This is different from earlier cases where American citizens inside the United States would be detained indefinitely without a chance to challenge their detention (Elsea, 2013).
  

References

Butler, C. (2007). Guantanamo Bay and the Judicial-moral Treatment of the Other. Purdue University Press.

Darmer, K., Baird, R., & Rosenbaum, S. (2004). Civil Liberties vs. National Security in a Post 9/11 World. Amherst: Prometheus Books.

Elsea, J.K. (2013). Detention of U.S. Persons as Enemy Belligerents. Congressional Research Service.

Ex Parte Quirin, United States Supreme Court 317 U.S. 1(1942).

Hamdi v. Rumsfeld, 542 U.S. 507.

Padilla v. Rumsfeld, 542 U.S. 426.

 

 

 

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