Introduction
to Detention Without Charge
Enemy
Combatants, Gitmo, and the Supreme Court
Potential
Topic Wording Issues
One of the core areas of “civil liberties” and the “war on terrorism” is the detention of suspected terrorists, particularly the detention of such individuals without charge of such individuals for an abnormal (beyond 48 hours) length of time.
Individuals who are detained for a considerable length of time without charge fit into one of three categories: (1) war fighters from other countries detained on the battlefield, (2) U.S. citizens detained on the battlefield (the battlefield has been defined both as U.S. territory and foreign territory), and (3) non-citizens (unnaturalized aliens) who are living in the United States. These individuals are likely to be detained in one of four places: (1) a foreign country occupied by U.S. forces or in a foreign area controlled by U.S. forces, (2) Guantanamo Bay Cuba, (3) a standard legal detention facility in the United States, (4) in another foreign country unoccupied by the United States. Individuals who are detained in the latter facilities are usually detained for interrogation purposes.
It is really impossible to describe precisely what authority the President has to order the four categories of detainees to be detained in the three general places. The President asserts multiple sources of authority and all sources of authority are heavily debated. Restricting particular sources of authority could result in the President claiming other sources, but failure to specify could create a topic that was too broad – it could deal with any type of detention.
The authority of the President (acting as Command-in-Chief) and the military to detain foreign enemy combatants without charge until the cessation of hostilities is generally accepted. Although prisoners of war must be treated in particular ways (there is also a debate as to who is classified as a “prisoner of war” – those who are entitled to more protections under international law), they do not need to be charged with a crime unless held beyond the duration of hostilities. This is consistent with common sense – requiring the military to conduct legal proceedings for every prisoner of war would be very problematic
The authority of the President and the military to detain U.S. citizens who are considered enemy combatants on the battlefield, particularly on U.S. soil, without charge is somewhat more controversial. In the only known instance prior to this new September 11th era, a U.S. citizen who was accused of aiding and abetting the enemy was charged with a crime and tried in a civilian court. There are no other known previous historical examples where a U.S. citizen was accused of being an enemy combatant and held indefinitely without charge.
The government claims that the authority to detain U.S. citizens indefinitely without charge as “enemy combatants” comes from two potential places. The first is the “Authorization to Use Military Force” (AUMF) against Afghanistan. The AUMF states that the President has the power to “use all necessary and appropriate force against those nations, organizations, or persons he 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.” The second is its Plenary Power under article II of the Constitution. The government relied on both of these in the Hamdi case that will be discussed below, but the court only evaluated the AUMF argument, finding that the government had the authority to detain Hamdi under the AUMF.
One of the most famous cases of someone who has been detained without charge is Joseph Padilla, who is a U.S. citizen and who was detained in the United States. Northwestern University’s Oyez project explains the facts of the case:
Jose Padilla was arrested in Chicago's O'Hare International Airport after returning from Pakistan in 2002. He was initially detained as a material witness[1] in the government's investigation of the al Qaeda terrorist network, but was later declared an "enemy combatant" by the Department of Defense, meaning that he could be held in prison indefinitely without access to an attorney or to the courts. The FBI claimed that he was returning to the United States to carry out acts of terrorism. Donna Newman, who had represented him while he was being held as a material witness, filed a petition for habeas corpus on his behalf. The U.S. District Court for the Southern District of New York ruled that Newman had standing to file the petition despite the fact that Padilla had been moved to a military brig in South Carolina. However, the court also found that the Department of Defense, under the President's constitutional powers as Commander in Chief and the statutory authorization provided by Congress's Authorization for Use of Military Force, had the power to detain Padilla as an enemy combatant. The district judge rejected Newman's argument that the detention was prohibited by the federal Non-Detention Act, which states that no "citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." On appeal, a divided Second Circuit Court of Appeals panel reversed the district court's "enemy combatant" ruling. The panel found that the Authorization for Use of Military force did not meet the requirement of the Non-Detention Act and that the President could not, therefore, declare American citizens captured outside a combat zone as enemy combatants. (http://www.oyez.org/oyez/resource/case/1730/).
The U.S. government appealed the decision of the Second Circuit to the Supreme Court. The Supreme Court, in a 5-4 decision in June of 2004 dismissed the appeal on a “technicality,” claiming that that Padilla’s attorney wrongly filed his habeas corpus – a petition to the government requiring the government to prove that someone is being legitimately held -- application in New York and that it should have been filed in South Carolina, where Padilla had been moved. If the application had been properly filed, the majority would have ruled that Padilla could challenge his detention.
On February 28, 2005, a circuit court judge concluded that the government has no authority to detain Padilla unless they charge him with a crime because he was detained on U.S. soil . CNN explains:
Calling the case a "law enforcement matter, not a military matter," a federal judge in South Carolina has ruled that the U.S. government cannot continue to hold "enemy combatant" Jose Padilla without charging him with a crime. The ruling says the government has 45 days to do so or Padilla would be eligible for release. The government vowed to appeal the ruling. The order from U.S. District Judge Henry Floyd sided with defense attorneys who advanced that argument in a hearing last month in Spartanburg, South Carolina, the jurisdiction where Padilla has been detained for 2 1/2 years as a military prisoner. Justice Department spokesman John Nowacki said, "We will appeal the judge's decision." The case would likely be heard next by the 4th U.S. Circuit Court of Appeals in Richmond. The government has argued that the president's constitutional authority as commander-in-chief and Congress's authorization for the use of military force against the perpetrators of the Sept. 11 attacks are lawful grounds for Bush's action. But Floyd drew a distinction between combatants captured during military operations abroad and suspected terrorists arrested on American soil. He relied on the Supreme Court's ruling in the parallel enemy combatant case of Yaser Hamdi, in which the majority decision declared a "state of war is not a blank check for the president when it comes to the rights of the nation's citizens." Both Hamdi and Padilla are U.S. citizens. "To be more specific," Floyd wrote, "whereas it may be a necessary and appropriate use of force to detain a United States citizen who is captured on the battlefield, this court cannot find, in narrow circumstances presented in this case, that the same is true when a United States citizen is arrested in a civilian setting such as an United States airport." The high court has held the president does have the authority to detain "enemy combatants" captured on the battlefield, but even then the detainee is entitled to a fact-finding hearing. The government avoided such a hearing in Hamdi's case by releasing him to his native Saudi Arabia last October. Padilla's attorneys have always maintained that presidential authority does not extend to American citizens caught on American soil, and unlike Hamdi, who was allegedly carrying a Kalashnikov assault rifle and traveling with Taliban troops, Padilla was carrying no weapons and wearing civilian clothes. "It is true that, under some circumstances, such as those present in Hamdi, the president can indeed hold an United States citizen as an enemy combatant. Just because something is sometimes true, however, does not mean that it is always true," Floyd wrote. "The president's use of force to capture Mr. Hamdi was necessary and appropriate. Here, that same use of force was not," the judge wrote. Floyd said if the purpose of Padilla's indefinite detention is to prevent him from rejoining his alleged al Qaeda confederates, then the president ought to ask Congress to pass a law allowing him to do so. "If the law in its current state is found by the president to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the president should prevail upon Congress to remedy the problem," Floyd wrote. In a related case, however, the Supreme Court provided some hope of relief to those detained as enemy combatants. Yaser Esam Hamdi was accused of being an “enemy combatant” because he was captured in Afghanistan during “the conflict” and was “affiliated” with a Taliban unit. All of the evidence that the government relies on is a summary of testimony from Michael Mobbs, who interviewed Hamdi shortly after his capture in Afghanistan. Mobbs’ synopsis is now known as the “Mobbs Declaration.” (http://www.cnn.com/2005/LAW/03/01/padilla.ruling/)
An appeals court in Virginia, however, did overturn this circuit court decision, and this has prompted a petition to the Supreme Court to hear the case. The Supreme Court decided not to act on Padilla’s petition (http://jurist.law.pitt.edu/paperchase/2006/02/supreme-court-to-hear-sentencing.php -- The Court also decided to take no action Tuesday on the appeal [JURIST report] by alleged "dirty bomber" Jose Padilla [JURIST news archive], a US citizen who is challenging his detention for 3.5 years as an "enemy combatant" without having been charged.).
Padilla has been charged with terrorism conspiracy has been denied bail (http://www.cnn.com/2006/LAW/02/17/padilla.hearing/) and will face trial. Interestingly, his attorneys are moving to suppress much of the evidence collected through new surveillance powers that Bush has claimed.
After Hamdi was captured he was returned to the United States, where he was not permitted to meet with any attorneys. His father intervened as a Next Friend and a public defender who was assigned to the case became actively involved. His attorney argued that Hamdi since “the conflict” (the war on terrorism) had no definable end-point and since the government never established what Hamdi’s affiliation was, Hamdi could essentially be locked-up for life and never able to challenge his designation as an enemy combatant.
Hamdi originally found a sympathetic ear in U.S. District Judge Robert Doumar (Norfold, VA). Doumar was skeptical of the government’s assertion that Hamdi was an enemy combatant and wanted to look at the evidence certifying him as such. The government challenged Doumar’s request, however, arguing that it may need to disclose sensitive intelligence information in order prove that Hamdi was an enemy combatant. The government found a sympathetic ear in the U.S. district court for the Fourth Circuit, which intervened, arguing that proper deference should be given to the military. But appellate court chief judge, J.Harvie Wilkinson, would not embrace the proposition that under no circumstances would judicial review of the “enemy combatant” designation be, but that it could be permitted in only a very limited manner.
In Hamdi, the majority of Supreme Court justices took issue with the appeals court decision and held that “although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker.” Justices O’Conner, Rhenquist, Kennedy, Breyer, Souter, and Ginsburg, all agreed on this point, though Souter and Ginsburg did not even think the detention was authorized in the first place.
In response to the decision, the Department of Defense announced that it was creating a Combatant Status Review Tribunal in which detainees may challenge their designation as enemy combatants. The DOD has notified those who are designated as enemy combatants that they may challenge their designation (Washington Post, 2004). In the summer of 2004, the U.S. agreed to release Hamdi back to Saudi Arabia (http://news.findlaw.com/hdocs/docs/hamdi/91704stlagrmnt.html).
It is interesting to note that the holding of this decision only stated that a “citizen” (of the United States) had the authority to challenge his determination as an enemy combatant. In Rasul v. Bush, however, the Supreme Court went a little farther, extending habeas corpus jurisdiction to challenge detention by the United States government of foreign citizens abroad.
In Rasul v. Bush, two Australians and twelve Kuwaitis captured during hostilities in Afghanistan challenged their detention in Guantanamo Bay, Cuba. They claimed that they were not combatants nor had they ever engaged in terrorist activity. The government argued that the courts had no jurisdiction to hear the case because Guantanomo Bay was outside the jurisdiction of the United States. Both the U.S. District Court and the U.S. Court of Appeals for the District of Columbia sided with the government in rejecting the suit, arguing that the while the U.S. exercises plenary authority and exclusive jurisdiction over Guantanamo Bay, it does not exercise ultimate sovereignty.
Although the Hamdi decision did contend that enemy combatants had a constitutional right to judicial review, the decision did uphold the President’s ability to hold enemy combatants:
Jerome A. Barron, Professor of Law, George Washington University Law School, NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY, 2005, p. 50.
When the Supreme Court's decision in Hamdi was announced, civil liberties organizations rejoiced. After all, the Supreme Court had not accepted the most extreme of the government's arguments that once the executive branch determined that a citizen was an "enemy combatant," he could be detained indefinitely, without judicial review and without congressional authorization. However, the Court did not reject this argument either. There was no need to rule on the issue, the Court declared, since Congress had, in fact, authorized detention of citizen enemy combatants. The executive branch, not surprisingly, viewed the case as a victory. United States Justice Department spokesman Mark Corallo emphasized that the Supreme Court had in fact upheld the authority of the President to detain enemy combatants including U.S. citizens. Corallo said, "This authority is crucial in times of war whether the enemy combatants are individuals who join our enemies on the battlefield to fight against America and its allies, or whether they are individuals who infiltrate our border to commit hostile and warlike acts against our nation."
It also upheld his authority to hold them without charge
Charles I. Lugosi, Assistant Professor of Law, St. Thomas University School of Law, AMERICAN JOURNAL OF CRIMINAL LAW, Spring, 2003, p. 228.
I wish to examine the legal treatment of an American citizen, Yaser Esam Hamdi, who is indefinitely detained under the label of an "enemy combatant," and stripped of all constitutional rights, including the right to due process of law. An enemy combatant might theoretically be any American citizen who is designated as an enemy of the state by order of the President of the United States. Enemy combatants can be detained without charge, denied counsel, and held incommunicado.
And, there is arguably nothing in the Hamdi decision that prohibits indefinite detention
The Committee on Federal Courts, THE RECORD OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, 2004, p. 167-8.
The third decision rendered on June 28, Hamdi v. Rumsfeld, did reach the merits. It may provide some clues, but surely no clear guidance, as to how the Court might decide the merits of Padilla, should that case ever return to the Court. Hamdi is an American citizen who was seized in Afghanistan, and only thereafter transported to the United States where he is still held by the Defense Department in South Carolina as an "enemy combatant." The six-member majority of the Court, in an opinion written by Justice O'Connor, reversed the Fourth Circuit's dismissal of Hamdi's petition, but in an opinion that leaves unsettled the ultimate power of the President to effect and continue indefinite detentions. The majority upheld the President's power to detain Hamdi, if properly classified as an "enemy combatant", and to continue to detain him as long as "United States troops are still involved in active combat in Afghanistan" The Court held Hamdi's detention, to this extent, authorized by the November 2001 joint congressional resolution for the use of military force against those responsible for the attacks of September 11 (the "AUMF"). The Court did not view due process to bar Hamdi's detention, relying principally on Ex Parte Quirin. Quirin did not involve detention, but rather the immediate military trial of an alleged citizen enemy combatant. But the Court opined that "nothing in Quirin suggested" that Hamdi's citizenship should preclude his "mere detention for the duration of the relevant hostilities," thereby preventing Hamdi from "returning to the front during the ongoing conflict." The Court was not dismissive of Hamdi's fear of prolonged detention, even "for the rest of his life," if for the duration of the "unconventional" war on terror, unlikely to have a finite conclusion. But it found no need to reach the possibly unique issues so posed given the ongoing armed conflict in Afghanistan.
Harms
Civil liberties/detention. Affirmatives can argue that the detention practices violate basic civil liberties since people are being held against their will with no formal charge.
Human rights violations. Many individuals who are detained, particularly those who are detained aboard, are subject to gross human rights violations.
Soft power. There is good evidence that Gitmo detention practices threaten our soft power
Different plans are advocated in the literature. In writing the resolution we would need to strike a balance between allowing the affirmative to debate cases unrelated to the core topic areas and avoiding bi-directionality as well as allowing them to debate some of these key issues.
ABA Guidelines. The affirmative could have the government adopt the ADA Guidelines that restrict the power of the President to designate enemy combatants
Charles I. Lugosi, Assistant Professor of Law, St. Thomas University School of Law, AMERICAN JOURNAL OF CRIMINAL LAW, Spring, 2003, p. 243-4.
The Preliminary Report of the American Bar Association Task Force on the Treatment of Enemy Combatants was released on August 8, 2002. It recommended (1) that the government explain the basis and scope of its authority to detain U.S. citizens as enemy combatants; (2) that Congress establish clear standards and procedures governing detentions of U.S. citizens; (3) that citizen detainees have access to judicial review to challenge their detention; (4) that citizen detainees not be denied access to counsel; and (5) that consideration be given to the international impact of our treatment of enemy combatants. On October 2, 2002, William J Haynes II, general counsel to the Department of Defense, issued its Response to the Task Force's preliminary report. The DND Response rejected the Task Force's suggestion that the indefinite detention of enemy combatants and denial of counsel were in any way inconsistent with the rule of law. The ABA House of Delegates approved the final revised report of the Task Force on February 10, 2003. The final report recommended that U.S. citizens and non-citizens lawfully present in the United States who are detained as "enemy combatants": (1) be afforded the opportunity for meaningful judicial review of their status; (2) not be denied access to counsel in connection with the opportunity for judicial review; (3) that their detention be governed by clear standards and procedures; (4) and that the government's policy regarding and treatment of enemy combatants be taken into account in considering future acts of terrorism.
Pass the Military Tribunals Act of 2003. The Military Tribunals Act of 2003 sets limits on when and how the President can designate an enemy combatant.
Daryl L. Hecht, Judge, Iowa Court of Appeals, SOUTH DAKOTA LAW REVIEW, 2005, p. 105-6.
Although Congress has supported the military mission in Afghanistan and Iraq with considerable funding, the Executive's claim of authority to imprison the Guantanamo detainees indefinitely without charge prompted some opposition in the Legislative Branch. The proposed Military Tribunals Act of 2003 would authorize the detention of any person who is not a citizen, resident, or prisoner of war who knowingly planned, authorized, committed, aided, or abetted one or more terrorist acts against the United States, or members of other terrorist organizations who knowingly cooperated with members of al Qaeda in planning, authorizing, committing, aiding, or abetting one or more terrorists acts against the United States. Detention of such persons could be maintained under the proposed Act only (1) during times when the President has certified "that the United States Armed Forces are engaged in a state of armed conflict with al Qaeda forces in the region of Afghanistan or with al Qaeda forces elsewhere" or (2) while "an investigation with a view toward prosecution, a prosecution, or a post-trial proceeding ... is ongoing." Although the proposed Act would theoretically allow aliens to be detained indefinitely so long as the Executive recertifies every 180 days the existence of an armed conflict with the Taliban or al Qaeda, the legislation would provide some very important procedural protections for detainees who have not been charged with an offense. The Act includes Congressional findings that procedural protections are necessary to (1) shield aliens from indefinite incarceration without legal recourse and (2) address the "significant danger ... that due process might be evaded simply by failing to bring detainees before a tribunal for trial." The legislation would expressly afford "due process, including the writ of habeas corpus and the right to an appeals process, ... to any person subject to a military tribunal." In sharp contrast, the President's executive order issued on November 13, 2001, purported to preclude those subjected to military tribunal proceedings from seeking any remedy in any domestic court or international tribunal. The express grant of due process protection for detainees in the proposed legislation expressly rejected the government's claim in Rasul and Al Odah that the alien prisoners held on Guantanamo could not find shelter under the United States Constitution. The legislation would also provide an alternative basis for federal jurisdiction to augment the habeas statute, the jurisdictional basis relied upon by the Rasul plurality and hotly contested by Justice Scalia, Chief Justice Rehnquist, and Justice Thomas in dissent. Furthermore, the proposed legislation would conform the detainees' procedural rights to international standards by invoking guarantees of fairness promulgated by the ICCPR.
FISA-Style Review. Congress could create a court similar to the FISA Court to review enemy combatant detentions
INDIANA LAW REVIEW, 2004, p. 595-7.
In order to have a meaningful review process, Congress needs to create a review panel similar to those created under the Foreign Intelligence Surveillance Act (FISA). It would benefit this discussion to look at the historical development of FISA. Prior to the FISA review process established by Congress under 50 U.S.C. §§ 1800-1811, the executive branch, under the "national security exception," began conducting electronic surveillance of foreign enemies or their agents within the United States without warrants. This process continued without any challenges from Congress until the Watergate scandal. Moreover, during the time period prior to Watergate, Congress explicitly refused to address the issue of regulating intelligence gathering that involved national security. After Watergate, the procedures used to initiate intelligence gathering received closer scrutiny and the Supreme Court ruled that "national security" would no longer satisfy domestic electronic information gathering without a proper warrant. Due to this ruling, including the Court inviting Congress to pass legislation to control this area, Congress enacted FISA. FISA designates eleven district court judges to review and grant orders that provide for electronic surveillance. The judges are appointed by the Chief Justice of the United States Supreme Court. FISA provides that judges will not serve more than seven years in this capacity and after their designated period is served, they are not eligible for re-designation. A FISA judge can grant an order approving the electronic surveillance of a foreign power or an agent of a foreign power based upon information provided by the government. The judge's decision is governed by statutory elements that must be met. Among those is the belief that probable cause exists that the person being targeted is associated with a foreign power. To assist in determining probable cause, the judge may, among other considerations, consider any past or present activities of the target.
Strike-Down the “Enemy Combatant” Designation. The Court could limit the authority of the President to detain anyone as an enemy combatant simply by getting rid of the classification.
The Committee on Federal Courts, THE RECORD OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, 2004, p. 105-6.
But assuming that the enemy combatant classification is sustained, questions concerning the length and conditions of incommunicado detentions designed to facilitate interrogation may not be subject to effective control by the courts. Our whole tradition is opposed to coerced confessions, including by extended detentions designed to extract information. Once that Rubicon is crossed, the courts are poorly positioned to second-guess executive decisions as to the utility or necessity of extracting information from a particular detainee, or the tactics--including the length and conditions of the detentions--best calculated to perform the extraction. These are largely subjective judgments, based on experience and hunches, informed by whatever has been gleaned from interrogations of other detainees, classified intelligence intercepts and other non-evidentiary information. The courts, on such matters of tactical judgment, would "tend to defer to the executive's assumed greater knowledge and expertise."
UN Observers. The UN could be given access to GITMO:
Jurist, March 2, 2006, http://jurist.law.pitt.edu/paperchase/2006/03/pentagon-defends-denying-un.php
JURIST] A US Department of Defense [official website] official Wednesday defended the government's decision [JURIST report] in October to refuse access by UN investigators to detainees being held at the US prison base in Guantanamo Bay [JURIST news archive], and reiterated that the operation of the facility is critical to information gathering in the war on terror. Brian Del Monte, deputy director of the Office of Detainee Policy, said that the International Committee of the Red Cross (ICRC) [official website] is the only external organization that is given clearance to visit the detainees, according to a mandate by the Geneva Conventions [ICRC materials]. A UN report [PDF text; JURIST report] released last month alleges prisoner abuse at Guantanamo Bay, but UN investigators never actually met with detainees and declined the Pentagon's invitation to tour the facility because they would not have been given access to interview those held there. In a panel discussion [event details; recorded video] with Del Monte at the Heritage Foundation, Human Rights Watch [advocacy website] advocacy director Jennifer Daskal asked why UN investigators were denied meetings with detainees if "there's nothing to hide," and questioned why so many individuals who reportedly have limited information to offer [National Journal report] are still being held. Del Monte responded that the National Journal report was based on a small sample of evidence taken from Guantanamo and that suspects like those being held are trained to lie about their level of involvement in terrorist activities. CNSNews has more.
Forced feedings. The forced-feeding of hunger-striking prisoners at GITMO could be prohibited.
Jurist, 2/28/06, http://jurist.law.pitt.edu/paperchase/2006/02/detainee-lawyer-wants-court-to.php
JURIST] A lawyer for a Yemeni prisoner held at the Guantanamo
Bay [JURIST news archive] detention camp has filed a motion in DC federal
court asking that the use of a restraint chair and large nasal feeding tubes to
force-feed his client be prohibited if he resumes his hunger strike. Muhammed
Bawazir ended his protest hunger strike in January following some
12 days of force-feeding [CNN report] after refusing food for 140 days. The
motion alleges that the force-feeding tactics now acknowledged
by the Pentagon amount to a torture violating the recently-enacted McCain
Amendment [JURIST news archive; amendment
text] incorporated into the Detainee
Treatment Act [JURIST document] prohibiting the cruel, inhuman or degrading
treatment of any person in the custody of the US government, either at home or
abroad. The military says similar tactics are used to force-feed civilian
prisoners on hunger strikes.
Reportedly only
four detainees are still on hunger strike [JURIST report] after the military
began using aggressive force-feeding tactics [JURIST report] to keep protesters
alive. Lawyers had announced last month that several
protesters were close to death [JURIST report] as a result of the hunger
strikes. AP has more.
Geneva Conventions. One popular case on the HS topic is to apply the Geneva Convention protections to Guantanamo Bay. This would essentially make the detainees prisoners of war.
Define the duration/location of the war on terror. If Congress defined the war on terror – what it was, where it operated, how long it lasted – the President would at least be limited to detaining individuals from particular places for a given amount of time.
This topic is conceptually biased toward the affirmative, particular in the liberal debate community. But, there are a number of factors that mitigate against this concern.
Agent Defense. It is hard to defend that a particular FG actor needs to do the plan. This will limit the number of affirmatives.
Terrorism DA. Although not popular on the HS topic since many camps didn’t even write it for some reason, this is a very defensible negative position. There are strong link cards for all of the cases, and the turns are relatively weak.
Kritiks. The kritiks against the workability of limiting Presidential power, as well as all of the kritisk of rights, are strong.
Harms Answers
Human rights answers. It will be difficult to directly defeat the argument that human rights violations occur when individuals are detained, particularly abroad. You can, however, minimize the harm of it and argue that the violations – they are usually tortured – are necessary to extract information to fight the war on terrorism.
Civil liberties answers. You can argue that most of those detained are 1) not US citizens, 2) are enemy combatants capture on the battlefield, 3) still will get there day in some sort of court to demonstrate their innocence.
Disadvantages
Terrorism. The main reason that the U.S. detains enemy combatants is to fight the war on terrorism. The war on terrorism is supported by enemy combatant detention in ways. First, detaining potential terrorists prevents them from committing acts of terrorism. Second, if the government had to formally charge individuals it would have to publicize who is held, potentially giving information to other terrorists that could impact their planning. Third, it would require that the military take the time to bring formal charges. This could disrupt military operations.
Deference. If the plan action involves the use of the courts, the Deference disadvantage links well to this affirmative. Remember that both the Hamdi and Raul decisions did not unconditionally protect the interests of the military and the President, so the link is not 100% unique, but the plan would still be a significant threat to deference relative to the status quo.
Counterplans
Less than the plan. If the plan were something radical – such as eliminating the enemy combatant designation – you could do something less radical – such as the ABA Guidelines with net-benefits of Terrorism and Deference.
Executive action. You could simply have the executive stop designating people as enemy combatants and detaining them without charge.
A lot of the literature on detentions deals with Guantanamo Bay, since that is where a large majority of enemy combatants are detained. Understanding what is going on at Guantanamo Bay and how it intersects the detention debate is critical to evaluating any potential “civil liberties” topic.
Guantanamo Bay is the site of a U.S Naval Base in Cuba. Located on the Southeast side of the island, it is the only naval base the U.S. has in a Communist country. The U.S. gained access to the base in 1904 under a leasing arrangement that makes cessation of the lease possible only if both sides agree or if the U.S. abandons the base. Although the U.S. leases the base, we concede full sovereignty over the base to Cuba. For more on the history of the base visit http://www.nsgtmo.navy.mil/history%201a.htm
The U.S. agreement that Cuba retains full sovereignty over the base is what likely motivated the Bush administration to house all enemy combatants and many others the U.S. wishes to detain indefinitely. The administration hoped that the courts would agree that they had no authority over the base, though as discussed in the previous essay, the courts have not accepted that and have intervened.
None of those held as enemy combatants, at least as of the Winter of 2005, have been charged:
Steven R. Shapiro, National Legal Director, ACLU, THE FLETCHER FORUM OF WORLD AFFAIRS JOURNAL, Winter, 2005, p. 107.
The first case in the trilogy,
Rasul v. Bush, involved the fate of approximately 600 prisoners held
incommunicado by the American military at the U.S. Naval Base in Guantanamo
Bay, Cuba. Many of the prisoners had been captured in Afghanistan, but an
undisclosed number had also been apprehended as alleged terrorists in various
countries around the world. Regardless of how or why they had been brought to
Guantanamo, none of the detainees had been charged or tried, and none had been
given access to lawyers. In addition, none of the detainees had been granted
prisoner-of-war status by the U.S. government, which took the position that the
Geneva Conventions did not apply to anyone held at
Guantanamo Bay is just one place that the U.S. detains enemy combatants without charge, so it is really just a subset of the general enemy combatant detention debates. Its notoriety, however, makes it the subject of unique body of literature, and I think it is likely that many affirmative plans will focus on this area.
The Advantages
Soft power/U.S. leadership. There is good evidence that indicates that holding individuals at Guantanamo Bay without charge and in the conditions that they are held is destroying our leadership and our soft power.
Human rights abuses. There is excellent individuals that those held at Guantanamo Bay are subject to human rights abuses. Some argue that at best these individuals are essentially Prisoners of War and should be entitled to the Geneva Convention protections.
Civil liberties. Holding someone without charge or recourse is an arguable violation of basic civil liberties protections.
Plans
Charge. The most topical plan is probably to simple require the government to charge individuals detained at Guantanomo with something. The utility of this is somewhat limited, since at-best it would probably just give them resources to a defense team (if it was a criminal charge). Moreover, according to the Supreme Court, these individuals already have this right. Second, the Bush administration would probably just try these people in military tribunals or military courts, which the negative can argue will not protect their rights in any way.
Reforms. Any of the enemy combatant detention reforms discussed in the previous section would make for potential affirmative plans.
Harms Answers
General. One important thing to remember when debating a Guantanomo Bay affirmative is that there are only 600 people detained there. Even at the extreme limit, you can argue that you shouldn’t take the case impact to be more then 600 deaths. So, you should be able to outweigh any Guantanomo case with a disadvantage.
Human rights. Since there are only 600 inmates at Guantanamo, most of the affirmative advantage will come from promoting human rights abroad. You should look through the answers in the human rights advantage section.
Disadvantages, Counterplans, Topicality Arguments
All of the disadvantages, counterplans, and topicality arguments discussed in the essay on general enemy combatant detention apply to Guantanamo Bay.
There are a number of interesting issues to consider as a result of these decisions. First, it has generally become accepted as a matter of law that the executive branch does have the authority to indefinitely detain some enemy combatants without charge. The issue of the authority of the government to indefinitely detain enemy combatants arose in the Hamdi case, but the court decided that the government did have the authority to detain enemy combatants. As stated, this is a logical, rationale conclusion since the military must be able to detain enemy combatants on the battlefield without charging them. Since the battlefield of the war on terror includes the U.S., and U.S. citizens have the potential to be terrorists, indefinite detention of said enemy combatants also makes sense. The concern expressed by litigants, and by the Supreme Court, however, is that since the geographic location of the battlefield has not been specifically defined and that the war on terrorism could go on indefinitely, almost anyone could be labeled by the government as an enemy combatant and subject to indefinite detention.
Second, courts are willing to assert jurisdiction outside the continental United States. They did in Hamdi and Rasul despite arguments that Guantanamo Bay is outside the sovereign authority of the United States and on December 16, 2004, “U.S. District Judge John D. Bates ruled that United States courts had jurisdiction in the case of Ahmed Abu Ali, a U.S. citizen jailed in Saudi Arabia as a terrorism suspect” (INTERNATIONAL LAW ENFORCEMENT REPORTER, February 2005, p. 26).
The third interesting thing to consider is that most of the literature published from this day on will move the debate forward beyond the Supreme Court’s important decisions. In other words, rather than rehashing the debate about whether or not the President should have the authority to detain all individuals without charge (the case of Padilla will make its way through the courts), it will focus on proposals for determining such things as how to define the “battlefield,” when detentions should be “reviewed” (since the war is indefinite), and how detainees should be treated. Negatives may wish to exploit this literature to defend counterplans that potentially avoid abuses of detention without charge without removing the authority of the President to detain without charge. A recent (2005) article in the Legal Times explains:
Amid the uproar over the possible responsibility of White House Counsel Alberto Gonzales in the abuse of many "enemy combatants," a substantial consensus on the need for congressional rules to govern the detention of such people is quietly emerging among experts, including moderate conservatives, moderate liberals, and even some strong libertarians. The underlying issue -- one of the most vexing posed by the war against terrorism -- is when to detain suspected terrorists who seem bent on committing mass murder but who cannot be criminally tried because critical evidence is inadmissible, inconclusive, or too sensitive to be publicly disclosed. The emerging consensus is not over what the detailed rules should be, but rather over the need for President George W. Bush to stop making them up as he goes along, and to start working with Congress. "The president has the power to detain enemy combatants, including U.S. citizens, until the end of the relevant conflict," stresses Goldsmith. Katyal and most other experts agree. But, Goldsmith adds, "because of the novel issues raised by this conflict, it would be prudent for the president to bring Congress on board in designing and legitimizing procedures appropriate for the identification and long-term detention of enemy combatants, especially those held in the United States. Trade-offs between liberty and security, and attendant accountability for errors of over- or under-protection of liberty or security, should rest with the political branches and not . . . with the courts” (January 10, p. 52).
Some of the authority that the Attorney General – the chief law officer of the federal[2] government -- claims for making such detentions without charge of un-naturalized aliens or U.S. citizens not engaged in direct hostile action against U.S. forces is found in the PATRIOT Act. Under the PATRIOT ACT, the Attorney General has expansive powers to indefinitely detain non-citizens and individuals who are identified as contributing directly or indirectly to terrorist operations. As long as the Attorney General has “reasonable grounds” to believe that person at issue is “described in” the anti-terrorism provisions of the law, the individual is subject to indefinite detention (Cole, 2003, p. 65).
Chang (2002) explains that the authority to detain non-citizens springs from Section 411 of the PATRIOT Act that authorizes the attorney general to detain noncitizens that he has “reasonable grounds to believe” are involved in terrorism as long a seven days without charging him or her with an immigration or criminal violation (p. 64). Although the seven day window to charge seems reasonable, the government often claims that there are necessary circumstances that prevent a charge from being issued within that time period. Cole argues that the PATRIOT Act’s definition of “terrorism” is so broad for immigration purposes that even individuals who have provided “humanitarian” assistance to these groups could be deemed a terrorist. Individuals detained under this authority do not necessarily have to be certified as “enemy combatants.”
The authority to detain non-citizens does not stem exclusively from the PATRIOT Act, however. Some authority also springs from changes made shortly after September 11th. On September 17, 2001, well before the PATRIOT Act was passed, the Code of Federal Regulations was amended to permit indefinite detention of aliens without arrest or bringing charge against them.
Immigrant Rights Clinic, New York University School of Law, New York University Review of Law & Social Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, p. 398
The
amendment to 8 C.F.R. 287.3(d), effected September 17, 2001, published in 66
Fed. Reg. 10,390 (Sept. 20, 2001) [hereinafter "amended rule" or
"amended regulation"], has gone a long way toward creating this fear.
In times of "emergency or extraordinary circumstance," as the current
situation un-doubtably has been called, the INS now may detain individuals
indefinitely following a warrantless arrest without bringing any charges
against them. The amended rule provides no definition of emergency or
extraordinary circumstance nor any explanation of how long "an additional
reasonable period" of detention may be.
It is important to note that many individuals, particularly unnaturalized aliens, who are subject to indefinite detention have been charged with a crime – usually a minor immigration violation (most of those detained are immigrants). Chang (2002) explains that if a non-citizen is “certified” as a terrorist and charged with an immigration violation – he or she is “subject to mandatory detention without release on bond until either he is deported from the Untied States or the attorney general determines that he should no longer be certified as a terrorist” (p. 64). Change continues to explain that “Section 412 does not direct the Attorney General to notify the non-citizen of the evidence on which the certification is based, or to provide him with an opportunity to contest that evidence, either at an immigration judge hearing or through other administrative review procedure” (p. 64).
Another source of authority to detain is the Creppy Memorandum, which was issued by a U.S. Immigration Judge – Michael Creppy. Acting under “direct instruction from Attorney General Aschroft, Creppy issued a sweeping order that excludes normal due process rights from cases deemed of “special interest.” U.S. Court of Appeals Judge Edward Becker, writing the decision for the court in North Jersey Media Group, Inc. v. Ashcroft, explained the terms of the Creppy Memorandum:
Chief Immigration Judge Creppy
issued a memorandum (the “Creppy Directive”) implementing heightened security
measures. The Directive requires immigration judges “to close the hearing[s] to
the public, and to avoid discussing the case[s] or otherwise disclosing any
information about the case[s] to anyone outside the Immigration Court:” It
further instructs that “[t]he courtroom must be closed for these cases – no
visitors, no family, and no press,” and explains that the restriction even
“includes confirming or denying whether such a case is on the docket or
scheduled for a hearing.” In short, the Directive contemplates a complete
information blackout along both substantive and procedural dimensions. (Becker,
2003, pp. 310-311)
According to Muzaffar Chishti, director of the Migration Policy Institute, more than 600 cases have been designated for this special treatment under the Creppy Memorandum:
In our report we found that at least six hundred cases were classified as “special interest” cases. The courts barred access to records of the persons in detention, closed their deportation hearings and the cases were not listed on the immigration docket. Such practices not only violate the rights of the individual detainees, they also violate important First Amendment rights of the press to have access to public hearings. As we maintain in our report, there certainly can be situations when secrecy may be warranted, but it must be allowed only on a case by case basis, and only by judicial intervention. (Chishti, America After 9/11, 2003, pp. 86-87)[3]
The rationale for detention without charge is basically an argument in favor of preventive detention – detaining someone in order to prevent him or her from committing a crime. The government contends that if these individuals are released they could commit terrorist acts or support the commission of terrorist acts. In 2003, in Denmore v. Kim, the Supreme Court upheld a statute – a law passed by a legislature -- mandating preventative detention during deportation proceedings of foreign nationals, even if the person posed no risk of flight or danger to the community (Cole, 2003, p. 224).
Unnaturalized immigrants – immigrants who do not yet have their citizenship but are in the United States – are usually detained under one of the previously discussed authorities.
The Supreme Court reversed, making two important holdings: 1) The habeas statute doesn’t distinguish between U.S. citizens and foreign nationals held in federal custody, and 2) the habeas write acts upon the person who holds the prisoner, not the prisoner himself. This means the courts have jurisdiction over persons held in federal custody regardless as to where they are held.
Most recently, in January of 2005, in Clark v. Martinez, the Supreme Court ruled 7-2 that the federal government cannot indefinitely imprison immigrants who cannot be deported. This decision also limited detention of immigrants to no longer than six months:
In a defeat for the Bush administration, the Supreme
Court ruled Wednesday that the government may not indefinitely imprison
immigrants who cannot be deported, even if they are in the country illegally.
The high court’s 7-2 ruling means that about 920 immigrants, most of them
Cubans, may be eligible to be released, according to the Homeland Security
Department’s Immigration and Customs Enforcement agency. The detainees in
question entered the country illegally, 747 of them as part of the 1980 Mariel
boatlift from Cuba. Most of the 747 committed crimes and completed prison
sentences, yet remain in custody because attempts to deport them to Cuba have
been blocked by Cuba’s refusal to take them back. In 2001, the Supreme Court limited how long a
legal immigrant could be detained to a reasonable period of time, usually six
months, if deportation was not foreseeable. Wednesday’s ruling expanded that
ruling to illegal immigrants. Civil liberties and human rights advocates applauded
the latest ruling. “It adds to the growing list of Supreme Court rulings
affirming the rights of noncitizens and overturning the Bush administration’s
overreaching claims,” said Lucas Guttentag, director of the ACLU Immigrants’
Rights Project, whose organization filed written arguments in court. “It points
to the crucial role of judicial oversight over executive decisions.” (Shogren,
2005, p. A24)
One important thing when writing this resolution is to try to determine what parameters we want to draw around the area of “detention.” Bishop Guertin, for example, argues that the government will use quarantines to fight the Bird Flu now and that this is a bad example of biopower. Although the case appears kind of silly, I just came across an article today on the government’s potential use of quarantines for the Bird Flu. It is not difficult to imagine that there are a large number of things that one is detained for. Limiting the topic only to “detention” turns it into one decriminalization generally. Affirmatives could, for example, eliminate the government’s ability to detain/incarcerate drug users.
Detention Without Charge?
This is the terminology used in the current HS topic. My concern with it is that it really isn’t a term of art and that it may still be too broad (see quarantines discussion).
President, Congress
Although the Executive is the only branch that executes the war on terror, we may want to specify it, or the President, as the power to restrain. Otherwise the topic arguably becomes bidirectional – you can reduce Congress’ authority to restrain the President in the war on terror.
The “War On Terror”
There are two problems with adding this terminology to the resolution. First, it is “loaded” terminology that forces that affirmative to deal with strong floating PICs in every debate. Second, many of the powers used in the WOT are general law enforcement powers.
There are a lot of interesting issues related to detention in the war on terror. Primarily, these intersect issues related to detention, Gitmo, and immigration. These are core “civil liberties” and “war on terror” issues. The trick will be to write a resolution that includes these elements while excluding other related issues that we do not really want to debate about.
Bibliography
Web
n Jurist Gitmo Blog
Pro Administration.
Yoo, John (2005). THE POWERS OF WAR AN PEACE. Yoo was one of the primary legal architects of the current WOT.
Anti-Administration
Irons, Peter. (2005). WAR POWERS.
Affirmative -- General
Borg, Molly. (2003). Justice in A Changed World. WILLIAM MITCHELL LAW REVIEW. 2003. 951-80.
Cassel, Elaine. (2004). THE WAR ON CIVIL LIBERTIES: HOW BUSH AND ASHCROFT HAVE DISMANTED THE BILL OF RIGHTS.
Cole, David. (2003). We've Aimed, Detained, and Missed
Before. WASHINGTON POST. June 8. B1.
Affirmative – Immigration
Akram, Susan. (2002). Race, Civil Rights, and Immigration Law After September 11, 2001: The Targeting of Arabs and Muslims Goes Local. NYU ANNUAL SURVEY OF AMERICAN LAW. 58. 295-FF.
Benhabib, Seyla. (2004). THE RIGHTS OF OTHERS: ALIENS, RESIDENTS, AND CITIZENS.
Chishti, Mazaffar. (2003). AMERICA'S CHALLENGE: DOMESTIC SECURITY, CIVIL LIBERTIES, AND NATIONAL UNITY.
Cole, David. (2003B). ENEMY ALIENS.
Dow, Mark. (2004). AMERICAN GULAG: INSIDE AMERICA'S IMMIGRATION PRISONS. This book has very few cards. It is mostly horror stories about American immigration prisons.
Engle, Karen. (2004). Constructing Good Aliens and Good Citizens: Legitimizing the War on Terror. UNIVERSITY OF COLORADO LAW REVIEW. 75. 59-FF.
Farman, Julie. (2005). US IMMIGRATION LAWS UNDER THE THREAT OF TERRORISM.
Haines, Seth. (2004). The Rights of Arab Detainees in a Post-September 11 World. ARKANSAS LAW REVIEW. 57. 105-FF.
Hashad, Dalia. (2004). Stolen Freedoms: Arabs, Muslims, and South Asian in the Wake of Post 9/11 Backlash. DENVERSITY UNIVERSITY LAW REVIEW. 81. 735-FF.
Johnson, Kevin. (2002). The End of Civil Rights as We Know It?: Immigration and Civil Rights in the New Millennium. UCLA LAW REVIEW. 49. 1481-FF.
Kanstroom, Daniel. (2003). The Still-Undefined Rights of Non-Citizens in the "Nation of Immigrants". NEW ENGLAND JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW. 9. 47-FF.
Keblawi, Jill. (2004). Immigration Arrests By Local Police: Inherent Authority of Inherently Preempted. CATHOLIC UNIVERSITY LAW REVIEW. 53. 817-FF.
Lobel, Jules. (2003). Rounding Up the Usual Suspects: Human Rights in the Wake of 9/11. THOMAS JEFFERSON LAW REVIEW. Spring. 389-405.
McKenzie, April. (2004). A Nation of Immigrants or A Nation of Suspects?. ALABAMA LAW REVIEW. Summer. 1149-ff.
Miller, Teresa. (2003). Citizenship & Severity: Reent Immigration Reforms and the New Penology. GEORGETOWN IMMIGRATION LAW JOURNAL. Summer. 611-666.
Miller, Teresa. (2005). Blurring the Boundaries Between Immigration and Crime Control. BOSTON THIRD WORLD LAW JOURNAL. 25. 81-FF.
Sinnar, Shrin. (2003). Patriotic or Unconstitutional? The Mandatory Detention of Aliens. STANFORD LAW REVIEW. April. 1419-1546.
Taylor, Marie. (2002). Safeguarding the Civil Rights of Middle Eastern-American and Immigrant Communities. GEORGETOWN IMMIGRATION LAW JOURNAL. 17. 63-FF.
Ting, Jan. (2003). Immigration Law Reform After 9/11. TEMPLE INTERNATIONAL AND COMPARATIVE LAW JOURNAL. 2003. 503-521.
Tumlin, Karen. (2004). Suspect First: How TerrorismPolicy is Reshaping. CALIFORNIA LAW REVIEW. July. 1173-1239.
Twibell, Wahab. (2005). The Road to Internment: Special Registration and Other Huam Rights Violations of Arabs and Muslims in the United States. VERMONT LAW REVIEW. Winter. 407-ff.
Victor, Romero. (2005). ALIENATED: IMMIGRANT RIGHTS, THE
CONSTITUTION, AND EQUALITY IN AMERICA.
Affirmative -- Padilla
Martinez, Jenny. (2004). Jose Padilla and the War on Rights.
VIRGINIA QUARTERLY. Fall. 56-68.
Enemy Combatants
Barron, Jerome. (2005). Citizenship Matters: The Enemy Combatant Cases. NOTRE DAME JOURNAL OF LAW, ETHICS, AND PUBLIC POLICY. 19. 33-ff.
Lugosi, Charles. (2003). Rule of Law or Rule By Law: The
Detention of Yaser Hamdi. AMERICAN JOURNAL OF CRIMINAL LAW. Spring. 225-78.
General
Tarin, Danielle. (2004). Congressional and Constitutional
Probhibitions on the Executive Power to Detain Citizens as Enemy Combatants.
VIRGINIA JORUNAL OF INTERNATIOANAL LAW. 44. 1145-FF.
Negative
Bastian, Mark. (2003). The Spectrum of Uncertainty Left by Zadvydas v. Davis. NEW YORK LAW SCHOOL REVIEW. Fall. 395-421.
Keith, Dana. (2004). Is the Name of National Security or
Insecurity?. FLORIDA JOURNAL OF INTERNATIONAL LAW. June. 405-80.
Negative -- Immigration
Sidebothom, Theresa. (2004). Immigration Policies and the
War on Terrorism. DENVER JOURNAL OF INERNATIONAL LAW. Summer. 539-81.
Plenary Power
Chin, Gabriel. (2000). Is there a Plenary Power Doctrine? A Tentative Apology and Prediction for Our Strange But Unexceptional Constitutional Immigration Law. GEORGETOWN IMMIGRATION LAW JOURNAL. 14. 257-FF.
Pettit, Anne. (1996). The Supreme Court, Stare Decisis, and the
Immigration Law Plenary Power. FORDHAM URBAN LAW JOURNAL. Fall. 165-ff.
Martin
Garbus is a partner in the law firm of Davis & Gilbert LLP and one of the
country's leading trial lawyers, NEW YORK OBSERVOR, December 28, 2005,
http://www.commondreams.org/views05/1228-34.htm
The expansion of
Presidential powers and the expansion of police powers is the single most
important issue facing this country. It is safe to say the new Supreme
Court and a majority of Congress (both Democrats and Republicans) are prepared
to give Mr. Bush a blank check. On Nov. 15, Carl Levin, the liberal Democratic
Senator from Michigan and an outspoken opponent of the war in Iraq, joined his
Republican counterpart from South Carolina, Lindsey Graham, in supporting
legislation validating the President’s Alice-in-Wonderland legal system and the
expansion of his police powers. The Senate vote was 79 to 16 in favor.
Richard A.
Falkenrath, Senior Fellow, Foreign Policy Studies, Brookings,
FOREIGN AFFAIRS, January 2006, http://www.brookings.edu/views/articles/falkenrath/20060104_review.htm
Also consider the question of how to relate
U.S. immigration law and policy to counterterrorism. It is true that in the
course of various domestic enforcement actions taken after 9/11, Muslims have
disproportionately borne the brunt of a highly disadvantageous legal process.
But it is also true that 9/11 has made the U.S. government highly risk averse
and has created the expectation that law enforcement agencies will prevent
attacks, not just investigate them after they occur. For long- and
well-established reasons, immigration law grants the executive branch great
flexibility in questioning, temporarily detaining, and deporting noncitizens
who are suspected of having violated the extraordinarily complicated
immigration code. Furthermore, immigration officials, prosecutors, and judges
have relatively little discretion to not enforce the law once a noncompliant
person comes to their attention. Hence the dilemma: the most effective body of
law for heading off foreign terrorist threats at home is also fundamentally capricious,
a true nightmare for anyone unlucky enough to be ensnared by it and thus yet
another obstacle to winning over the hearts and minds of Muslims at home and
abroad. To help policymakers resolve this dilemma, independent experts need to
wade far enough into this legal, institutional, operational, and political
thicket to point a realistic way out.
MOST DETAINED AT GUANTANAMO
HAVE NOT BEEN CHARGED
ASSOCIATED PRESS, January 27,
2006, http://www.forbes.com/technology/feeds/ap/2006/01/27/ap2483018.html
Interrogation methods at the U.S. prison camp in
Guantanamo Bay, Cuba, are still a concern, Sen. John McCain said Friday,
calling on authorities to process the cases of prisoners held for as long as
four years without charge. Some
500 men accused of links to Afghanistan's ousted Taliban regime
or the al-Qaida terror network continue to be held at the prison camp. Only a
handful of the prisoners have been charged.
PRESIDENT
HAS AUTHORITY TO DETAIN, BUT IT IS NOT UNLIMITED
Lisa
L. Miller is an Assistant Professor of Political Science at Rutgers University,
TOO LITTLE TOO LATE: THE SUPREME COURT AS A CHECK ON EXECUTIVE POWER, February
17, 2006, http://www.fpif.org/fpiftxt/3117
Some
see the court's ruling in Hamdi v. Rumsfeld (2004) as a sincere
curtailment of executive power because eight of nine justices refused to
acquiesce to the Bush administration's claim that Congress' Authorization to Use Military Force in Afghanistan
allowed the president to detain an American citizen indefinitely on little more
than its own say-so. But, writing for the majority, Sandra Day O'Conner
actually reaffirmed the broad power of the executive branch to detain citizens,
even indefinitely, when Congress has authorized discretion as it did in
Afghanistan and Iraq. The court's decision did hold the government to a
higher standard by refusing to accept the administration's argument that a
flimsy affidavit by one executive agent was sufficient to justify the detention,
and by requiring the government to allow Hamdi to challenge that detention. But
the thrust of the majority and concurring opinions were consistent with the
court's previous decisions on executive power, which indicate deference to
Congress and an unwillingness to shorten the presidential tether in the absence
of congressional intent to the contrary.
TERRORIST
SURVEILLANCE IS PART OF INHERENT PRESIDENTIAL POWERS
Alberto Gonzales, U.S. Attorney General, PREPARED REMARKS AT THE GEORGETOWN LAW CENTER, January 24, 2006, http://www.usdoj.gov/ag/speeches/2006/ag_speech_0601241.html
The
terrorist surveillance program is firmly grounded in the President’s
constitutional authorities. No other public official – no mayor, no governor, no member
of Congress -- is charged by the Constitution with the primary
responsibility for protecting the safety of all Americans – and the
Constitution gives the President all authority necessary to fulfill this solemn
duty. It has long been recognized that the President’s constitutional powers
include the authority to conduct warrantless surveillance aimed at detecting
and preventing armed attacks on the United States. Presidents have uniformly
relied on their inherent power to gather foreign intelligence for reasons
both diplomatic and military, and the federal courts have consistently upheld
this longstanding practice. If this is the case in ordinary times, it is
even more so in the present circumstances of our armed conflict with al Qaeda
and its allies. The terrorist surveillance program was authorized in response
to the deadliest foreign attack on American soil, and it is designed solely to
prevent the next attack. After all, the goal of our enemy is to blend in with
our civilian population in order to plan and carry out future attacks within
America. We cannot forget that the 9/11 hijackers were in our country, living
in our communities.
NSA ACTIVITIES PART OF THE PRESIDENT’S COMMANDER-IN-CHIEF POWERS
U.S. Department of Justice, LEGAL ACTIVITIES SUPPORTING THE NSA, January 9, 2006, http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf
The NSA activities are supported by the President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. The President has the chief responsibility under the Constitution to protect America from attack, and the Constitution gives the President the authority necessary to fulfill that solemn responsibility. The President has made clear that he will exercise all authority available to him, consistent with the Constitution, to protect the people of the United States.
SURVEILLANCE IS CONSISTENT WITH THE FOURTH AMENDMENT
Alberto Gonzales, U.S. Attorney General, PREPARED REMARKS AT THE GEORGETOWN LAW CENTER, January 24, 2006, http://www.usdoj.gov/ag/speeches/2006/ag_speech_0601241.html
Finally,
let me explain why the NSA’s terrorist surveillance program fully complies
with the Fourth Amendment, which prohibits unreasonable searches and seizures.
The Fourth Amendment
has never been understood to require warrants in all circumstances. For instance, before you get on an
airplane, or enter most government buildings, you and your belongings may be
searched without a warrant. There are also searches at the border or when
you’ve been pulled over at a checkpoint designed to identify folks driving
while under the influence. Those searches do not violate the Fourth Amendment
because they involve “special needs” beyond routine law enforcement. The
Supreme Court has repeatedly held that these circumstances make such a search
reasonable even without a warrant. The terrorist surveillance program is subject to the checks
of the Fourth Amendment, and it clearly fits within this “special needs”
category. This is by no means a novel conclusion. The Justice Department during the
Clinton Administration testified in 1994 that the President has inherent
authority under the Constitution to conduct foreign intelligence searches of
the private homes of U.S. citizens in the United States without a warrant, and
that such warrantless searches are permissible under the Fourth Amendment.
The key question, then, under
the Fourth Amendment is not whether there was a warrant, but whether the search
was reasonable. This requires balancing privacy with the government’s interests
– and ensuring that we maintain appropriate safeguards. We’ve done that here.
No one takes lightly the
concerns that have been raised about the interception of communications inside
the United States. But this terrorist surveillance program involves intercepting
the international communications of persons reasonably believed to be members
or agents of al Qaeda or affiliated terrorist organizations. This surveillance
is narrowly focused and fully consistent with the traditional forms of enemy
surveillance found to be necessary in all previous armed conflicts. The authorities are reviewed
approximately every 45 days to ensure that the al Qaeda threat to the national
security of this nation continues to exist. Moreover, the standard applied −
“reasonable basis to believe” − is essentially the same as the
traditional Fourth Amendment probable cause standard. As the Supreme Court has
stated, “The substance of all the definitions of probable cause is a
reasonable ground for belief of guilt.” If we conduct this reasonable
surveillance – while taking special care to preserve civil liberties as we have
– we can all continue to enjoy our rights and freedoms for generations to come.
THE U.S. GOVERNMENT IS ENGAGING IN EXTENSIVE SPYING ON POTENTIALLY MILLIONS OF U.S. CITIZENS WITHOUT PROBABLE CAUSE
WORLD SOCIALIST WEB, December 31, 2005, http://www.wsws.org/articles/2005/dec2005/spy-d31.shtml
Recent articles in the US media indicate that the illegal spying
organized by the Bush administration has extended far beyond what was initially
reported. It is becoming increasingly clear that the US government has
been engaging in a massive operation
that violates fundamental democratic and
constitutional rights. Following an initial report by the New York
Times on December 15, Bush acknowledged that he
issued a Presidential order authorizing the National Security Agency (NSA) to
spy on some calls made to or from the United States without obtaining the
approval of the Foreign Intelligence Surveillance Court. In issuing the order,
the administration acted in violation of US law, which requires the NSA to
receive a court warrant to monitor any communications involving individuals
within the United States. The
administration initially stated that the spying was limited to a relatively
small number of individuals connected to Al Qaeda, and that no entirely
domestic communications were spied on. Subsequent repots have undermined both
of these claims. Citing unnamed
current and former government officials, the Times reported on December
24 that “the volume of information harvested from telecommunication data and
voice networks, without court-approved warrants, is much larger than the White
House has acknowledged ... It was collected by tapping directly into some of
the American telecommunication system’s main arteries.” Much of the communications that go in and out of the United
States pass through switches that relay large amounts of data and are
controlled by a handful of private corporations. The officials said that this
data was turned over to the NSA, which was able to use various search, or “data mining” techniques to
find information it was looking for. Essentially, this means that the
government was not spying on a few hundred individuals at a time, as had been
previously reported, but potentially thousands or millions of separate communications, including phone conversations
and emails. The figure
previously reported in the press of several hundred individuals tracked at any
given time may account for only those calls or e-mails that the NSA determined
were suspicious, when in fact the databases that the government was using to
track these communications involved much greater numbers. The issue of switches had come up previously in discussions
between the administration and the Foreign Intelligence Surveillance Court. The
Times quotes a Justice Department official as saying that “there was a
lot of discussion about the switches” and that the court expressed skepticism
about the legality of using this information. This gives some insight into
why the administration decided to go outside of the court, which typically
grants all requests for warrants and allows for up to 72 hours of spying before
a warrant has to be obtained. The government wanted to pursue a program
that is far broader in scope than even the FISA court would allow. The new revelations
highlight the degree to which the US government relies on the secret
collaboration of private corporations in violating the democratic rights of the
population. In a December 25 article, the Los Angeles Times reported on
one database that is being kept by telecom giant AT&T, code-named Daytona,
which records phone numbers and call durations. According to a business
executive quoted by the newspaper, the NSA has direct access to the entire
database. This means that the government has the ability to monitor the calling
habits of all individuals tracked by the database, presumably including calls
entirely within the US. An
article published December 20 in the New York Times also reported that
the communications monitored by the administration included purely domestic
calls and e-mails. Administration officials claimed that the interception
of such communications was accidental, due to the alleged difficulty of
determining their origin and destination. However, it raises the possibility
that the scope of the spying extends to include large swaths of domestic
e-mails and phone calls of US citizens. All
of these activities are in clear and direct violation of the 1978 Foreign Intelligence
Surveillance Act (FISA), enacted following the Church Committee investigations
into illegal spying and other activities carried out by US intelligence
agencies during the 60s and 70s, culminating in the Watergate scandal. Among
the programs investigated by the Committee was “project SHAMROCK,” whose task
was to collect and analyze all telegram communications going into and out of
the United States. FISA was designed in part to explicitly prohibit this
activity, which Senate Intelligence Committee Chairman Frank Church called
“probably the largest government interception program affecting Americans ever
undertaken.” Internet security
expert Bruce Schneier noted that the government spying program approved by the
Bush administration was “explicitly anticipated in 1978, and made illegal by
FISA. There might not have been fax machines, or e-mail, or the Internet, but
the NSA did the exact same thing with telegrams.” The administration is
claiming that any restrictions that the law might place on the spying
activities that Bush has authorized are an unconstitutional violation of his
powers as commander-in-chief. The
spying programs that are now coming to light are only a part of a broader move
by the administration to make greater use of vast databases and data mining
techniques to monitor the activity of
the population. These plans were
initially intended to be brought together in the so-called Total Information
Awareness program (TIA), the brainchild of Defense Department official John
Poindexter, who became infamous for his actions as National Security Adviser to
President Ronald Reagan during the Iran-Contra scandal. TIA was to accumulate vast stores of data—everything from credit
card purchases to travel histories and Internet activity—in a centralized
spying operation within the Department of Defense. When the program’s existence
was revealed in the media, it produced intense popular opposition, and Congress
eventually passed a bill denying any funding for the program. However, the basic premise of the TIA
program has continued in other forms. A May 2004 report by the Government
Accountability Office found that nearly 200 data-mining operations are ongoing
or planned, including 29 for intelligence or police activities. In 2004, the
American Civil Liberties Union obtained documents relating to the Multi-state
Anti-Terrorism Information Exchange (MATRIX), an ostensibly state-run but
federally-funded data-mining operation. The ACLU argued that the program was in
part an attempt by the government to continue the TIA project in a way that
would attract less public attention. There
can be do doubt that these recent revelations are only a very small indication
of the types of illegal activities being carried out by the government. Earlier
in the month, reports emerged of a Pentagon program that included the spying
and collection of information on anti-war protesters and other individuals
considered to be “threats” to military installations. Last week, the US News
& World Report revealed a joint FBI-Energy Department program to test
for radiation near mosques and other Muslim or Arab-American organizations. On
December 22, the New York Times published an article documenting the
infiltration by New York City police of anti-war protests. Not only did the
police collect information on the protestors, but they also engaged in
provocations. The Times reported that at the Republican National
Convention last year, “the sham arrest of a man secretly working with the
police led to a bruising confrontation between officers in riot gear and
bystanders.”
DEMONSTRATING THE NEED FOR A WARRANT IS CRITICAL TO PREVENT GOVERNMENT OPPRESSION
COLUMBIA DAILY TRIBUNE, December 31, 2005, http://www.news-leader.com/apps/pbcs.dll/article?AID=/20051231/OPINIONS03/512310310/1006
Taking the two defenses in order, just because a former president might have taken the same shortcut does not make it right.
Going through the judicial warrant process is vital to maintaining our
cherished freedom from government oppression. The secretive process set up for
judicial second-guessing of these domestic spying missions is flimsy enough,
allowing government agents to proceed without public disclosure, the basic
defense in our society against official excesses, but it does so to protect
national security. The Constitution
gives the chief executive a good deal of prerogative to conduct war, but its
essence is the protection of individual freedom. These principles come into
conflict most starkly when presidents spy on their citizens. The conflict was
reconciled by the establishment of the secretive judicial panel to hear such
requests. The president — any president — must use this process.
JUDICIAL REVIEW IS NEEDED TO PROTECT PRIVACY RIGHTS
Anthony Romero, Executive Director, ACLU, ACLU LETTER TO ATTORNEY GENERAL GONZALEZ, December 21, 2005, http://www.aclu.org/safefree/general/23184leg20051221.html
The entire point of FISA’s requirement of judicial review
is to ensure that only suspected foreign agents are subject to government
seizure of their every electronic communication. The process due under the
Constitution to vindicate the fundamental Fourth Amendment right to privacy
surrounding private conversations-whether by telephone, e-mail, or facsimile,
whether international or domestic, and whether with loved ones or coworkers-is
that the government must show a court that there is reason to believe the
person in this country is an agent of a foreign power, before round-the-clock
surveillance or recording of the intimate or mundane conversations of free
people is permitted. And, nothing Congress has voted for since September 11,
2001 constitutes permission for the president to strip away these rights,
secretly and unilaterally.
MONITORING WILL BE ABUSED AND USED
AGAINST POLITICAL OPPONENTS, RESULTING IN TYRANNY
ALTERNET.ORG, December 31, 2005,
http://mathaba.net/0_index.shtml?x=496592
As the late Sen. Frank Church
said, "That capability could at any time be turned around on the
American people, and no American would have any privacy left, such is the
capacity to monitor everything: telephone conversations, telegrams, it doesn't
matter. There would be no place to hide." And if a dictator took over, the
NSA "could enable it to impose total
tyranny." Then we always
get that dreadful goody-two-shoes response, "Well, if you aren't doing
anything wrong, you don't have anything to worry about, do you?" Folks,
we KNOW this program is being and will be misused. We know it from the past
record and current reporting. The program has already targeted vegans and
People for the Ethical Treatment of Animals -- and, boy, if those aren't
outposts of al-Qaida, what is? Could this be more pathetic?
[1] Under the BAIL REFORM ACT OF 1984, the government can indefinitely detain material witnesses if they think the witnesses may flee before providing testimony.
[2] States also have attorney generals.
[3] This description of the Creppy Memorandum is taken
from Rich Edward’s 2005-6 FORENSICS QUARTERLY.