Collaborating For Effective Justice

In the wake of September 11, 2001, America continues to fight its War on Terror. Originally, the Bush Administration held that all captured terrorists were enemy combatants, so they did not have our constitutional rights. Therefore, President Bush ordered the incarceration of hundreds of suspected terrorists in Guantánamo Naval Base. The detainees, devoid of legal counsel, complained that our legislation did not have a clear statement regarding their crimes, so they began to file writ of habeas corpus petitions. Civil liberty activists agreed with the prisoners. The activists argued that while military tribunals effectively detained suspected terrorists, they lacked proper court procedure and constitutional guidance. While our government has an obligation to adhere to our country’s Constitution, present times suggest we need to institute a method of trying and punishing suspected terrorists. Therefore, our judiciary and executive branches should collaborate regarding our counterterrorism policy, so terrorist prisoners cannot misunderstand, or abuse, constitutional rights in civilian courts. 

When our penal system detains suspected lawbreakers, suspects have the right to question their imprisonment in front of a judge. Essentially, we have the right to legal counsel if we are detained. It is one of our oldest and most basic rights; however, our government leaders wonder if it applies to suspected terrorists. While our early House and Senate determined habeas corpus a necessary measure to protect a human being’s basic rights, they did not foresee the aftermath of a terrorist act such as 9/11. The War on Terror continues, so our government needs to reach a consensus regarding suspected terrorists’ incarceration and punishment. Otherwise, we risk mistrials and unsound judgments. In addition, an explicit procedure, which both branches can agree on, safeguards our legal system and allows us to legally confine dangerous people. After all, traitorous and terroristic behavior is not a novelty, so we must take appropriate measures to protect the United States. 

Incidentally, as the United is the main target, in order to protect the United States from threats, a few of America’s early political leaders did not agree with judiciary rules of proper procedure and overrode our constitutional law. For example, in 1819, General Andrew Jackson’s actions against Alexander Arbuthnot and Richard Ambrister in the First Seminole War launched “the first major investigation by Congress, as well as the lengthiest debate engaged by the House of Representatives” (Rosen, 2008, p. 559). General Jackson decided the two British colonists were enemies of the state, and he arranged for the men to be tried in a military court. The court declared the men guilty of supporting the enemy and ordered Arbuthnot’s execution and Ambrister’s punishment. Ordinarily, a court’s decision stands, but Jackson overruled Ambrister’s verdict, and he sentenced the British man to execution as well. Consequently, Jackson’s critics argued that the general failed “to provide proper legal process” (Rosen, 2008, p. 560), and his treatment against the two men was unconstitutional because their imprisonments and eventual executions did not comply with federal laws. Specifically, the general abused his power and ignored due process by acting on his own. Other historical leaders such as President Abraham Lincoln and President Franklin D. Roosevelt captured the Supreme Court’s attention by challenging federal law. At the time, some argued our elected officials only acted in the best interests of our country; however, they demonstrated a lack of respect for our Constitution. In fact, political leaders’ disregard for the writ of habeas corpus, regarding enemy combatants, has continued into the 21st century. In addition, it seems they continue to question the judiciary system’s ability to effectively try suspected terrorists. 

For this purpose, the Bush Administration held that all captured terrorists were enemy combatants, so they did not have the same constitutional rights. In addition, Bush asked that legislation deny suspected terrorists’ bail and allow the death penalty to punish any terrorism-related offences. However, there were never trials because Guantanamo “is an interrogation camp…[and] designed as a legal no man’s land…where U.S. laws would not apply” (Foley, 2007, p. 1043). Therefore, the detainees did not have access to counsel, so this suggests Bush ignored our Constitution. In that way, he allowed possible terrorists the means to abuse our system. 

Typically, incarcerated individuals have to exhaust all other routes before petitioning for habeas corpus, but in the court case Boudmeicne v. Bush, the Supreme Court permitted Guantanamo captives to advance directly to federal court. Justices Anthony M. Kennedy, John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer revealed the basis of their concern was the Detainee Treatment Act of 2005 failed to offer the protection of habeas corpus. Justice Kennedy emphasized that our laws and Constitution should remain in force regardless of the matter. The dissenting judges Chief Justice John G. Roberts Jr., Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. were unhappy with the decision and declared it was a mistake, not only for this particular case, but it would have severe consequences. In particular, Justice Scalia claimed the decision was not based on principle but more or less a “power struggle” (Pond, 2009, p. 1928) between the executive branch and the judiciary branch. Chief Justice Roberts agreed and revealed his fear extended to the public’s control over the United States foreign policy and the possibility of inexperienced judges handling dangerous criminals. The Bush administration took the Supreme Court’s ruling as defeat, but the writ of habeas corpus does not declare an offender guilty, nor does it claim the offender is innocent. Nevertheless, to the public’s eye, the judges’ division revealed a mistrust of our Constitutional laws and that suggests weakness others may want to exploit. 

After the suspected terrorists petitioned for habeas corpus, President Bush decided the government needed new legislation to fight the War on Terror. Brian Foley (2007) agrees, but he claims in order to avoid prejudice, “all tribunals should consist of trained judges…from outside the military…and preferably Article III judges” (p. 1062). We regard Article III judges as constitutional judges, so we assume this sector would adhere to the Constitution regardless of the detainee’s background. For what it is worth, the 1971 Non-Detention Act allows that citizens may be detained if it is an act of Congress, but the act was most likely “designed to avoid roundups of civilians…[such as] the internment of Japanese-Americans in World War II”  (Bradley, 2010, p. 145). Therefore, this act does not specifically include suspected terrorists. In fact, outdated laws and generalized conditions continue to plague the War on Terror. For example, in his article “Clear statement rules and executive war powers,” Curtis Bradley (2010) argues that “the scope of the President’s independent war powers [are] notoriously unclear” (p. 139). In other words, in the context of war, the president’s role is to protect the well-being of his country, but he does not have an explicit written policy to adhere to, so he usually acts on his own accord which may lead to negative consequences.

Critics suggest our counterterrorism policy is too general. Therefore, the executive and judiciary branches should “come together to give the democratic imprimatur of legislation to counterterrorism policy” (Anderson, 2006, p. 5). After all, Congress is responsible for upholding and maintaining public confidence in the law. In addition, Congress considers factors such as reviewing the president’s evidence, determining the location of the detainee’s arrest, and the arresting party, but Congress also considers foreign policy. Kenneth Anderson (2006) emphasizes “Congress has an indispensable role to play in establishing democratically legitimate policy in counterterrorism” (p. 3). Subsequently, either military tribunals or civilian courts would benefit from a counterterrorism policy, which includes Congress’s roles, in order to effectively try suspected terrorist prisoners. Moreover, a clear policy would institute a concrete forum in case, out of the many detainees in Guantánamo, a confirmed terrorist is in the base’s midst. In the meantime, our current policy will continue to give the United States negative publicity because investigators are “Operating under lax rules” (Foley, 2007, p. 1051). If we do not have specific guidelines, we may end up holding innocent people in military tribunals. In the end, we will lose sight of who are criminals and who are innocent bystanders. 

In our history, our civilian courts have been effective venues for criminal trials. Because the judges have experience leading court while following explicit guidelines, they should continue to try suspected terrorists in civilian courts. Nevertheless, the legislative branch is accountable “for democratically establishing…long-term legitimacy…and civil liberties” (Anderson, 2006, p. 4). In other words, our civilian courts need rules in order to maintain the legality of their proceedings. Some may argue that civilian courts have also made mistakes in regards to detaining innocent people in the past, but our new technology and DNA identification provides judges with substantial evidence as to whether the party is innocent or guilty. Unfortunately, the military tribunals seem to rely on unreliable sources and circumstantial evidence. Consequently, the military tribunal’s method of interrogation, such as torture, may only lead to sources willing to say anything in order to end their suffering. It seems “the Bush administration sees war as a means to deny terrorists safe haven” (Anderson, 2006, p. 4), but merely confining suspected terrorists will only postpone justice. In the end, we designed our courts to separate the guilty from the innocent, and our adherence to integrity, in our courts and our counterterrorism policy, will only strengthen our country.

Americans value our rights to freedom and due process, so we need to extend those rights to everyone we try in our country. While “the wheels of justice move slowly” (Cole, 2003, p. 2566), we must continue to have faith in our Constitution. If we deny others their constitutional rights in our country, we risk our credibility. In addition, often “in times of crisis…constitutional rights and liberties are most needed, because the temptation to sacrifice them in the name of national security will be at its most acute” (Cole, 2003, p. 2567). In other words, we cannot let our emotions control our actions. Granted, 9/11 was an emotional tragedy which impacted, yet united, its citizens. Nevertheless, the United States government should use logic. It is not logical to merely detain suspected terrorists with no chance of cross-examination or investigation. We end up ignoring possible substantial evidence that would allow us to legally try and convict dangerous terrorists. 

In conclusion, America’s War on Terror is far from over, so the American public needs assurance from our government officials. The suspected terrorists’ detainment was essentially illegal, but fear for our country was rampant. Nonetheless, in order to protect our country, we need assurance of rules. Our country was constructed on proper procedure, and if we ignore our laws, for certain occasions, we risk chaos.  Our government branches have a responsibility to its citizens, so democracy endures. Once the United States’ judiciary and executive branches come together to define enemy combatants and explicate our counterterrorism policy, our nation will have the assurance that regardless of the disaster, we continue to remain a solid country with sound constitutional guidance with no possibility for abuse. 

References

Anderson, K. (2006, October/November). Law and terror. Policy Review, (139), 3-24. 

Bradley, C. A. (2010). Clear statement rules and executive war powers. Harvard Journal of Law and Public Policy, 33(1), 139-148. 

Cole, D. (2003, August). Judging the next emergency: Judicial review and individual rights in times of crisis. Michigan Law Review, 101(8). 2565-2595. 

Foley, B. (2007). Guantanamo and beyond: Dangers of rigging the rules. Journal of Criminal Law &Criminology, 97(4), 1009-10069. 

Rosen, D. A. (2008). Wartime prisoners and the rule of Law: Andrew Jackson's military tribunals during the First Seminole War. Journal Of The Early Republic, (4), 559. doi:10.2307/40208135

Pond, B. C. (2009). Boumediene v. Bush: Habeas corpus, exhaustion, and the special circumstances exception. Brigham Young University Law Review, 2009(6), 1907-1933.