America's War on Terror: Counterterrorism

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America's War on Terror has brought new legal and ethical issues into public discourse. The aftermath of the attacks of September 11, 2001, led to a massive increase in government violations of civil liberties and rights of the individual. However, the reality of modern warfare does not necessarily match up exactly with how the legal system is set up. This sample politics paper focuses on the rights of terrorist prisoners in civilian courts.

Counterterrorism in the United States

America continues to fight its War on Terror in the wake of the September 11, 2001, terrorist attacks. 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 a 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 the government has an obligation to adhere to our country’s Constitution, present times suggest a need to institute a method of trying and punishing suspected terrorists. Therefore, the judiciary and executive branches should collaborate regarding our counterterrorism policy, so terrorist prisoners cannot misunderstand, or abuse, constitutional rights in civilian courts.

Terrorists' right to question imprisonment

When the penal system detains suspected lawbreakers, suspects have the right to question their imprisonment in front of a judge. Otherwise known as the writ of habeas corpus, the Latin term literally means “you should have the body” (“Habeas corpus,” 2013). Its main role is to protect individuals from “unlawful imprisonment” (“Habeas corpus,” 2013).

Essentially, Americans have the right to legal counsel if they are detained. It is one of the oldest and most basic rights; however, the government leaders wonder if it applies to suspected terrorists While early House and Senate hearings determined habeas corpus a necessary measure to protect a human being’s basic rights, they did not foresee acts of terrorism.

The War on Terror continues, so the government needs to reach a consensus regarding suspected terrorists’ incarceration and punishment. Otherwise, it risks 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, the traitorous and terroristic behavior is not a novelty, so we must take appropriate measures to protect the United States.

Early American thoughts on terrorism and punishment

Incidentally, 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 should not enjoy the freedoms listed in the Bill of Rights, 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 of 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.

Captured terrorists as combatants

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 offenses. 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.

Counterterrorism and prisoner rights

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 a 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.

Habeas Corpus as it applies to terrorists

After the suspected terrorists petitioned for habeas corpus, President Bush decided the government needed new legislation to protect national security from terrorism. 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:

“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.

Counterterrorism and the law

Critics suggest American foreign policy has failed to intervene and protect from terrorism. 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.

Civilian courts role in counterterrorism

Civilian courts have been effective venues for civil and 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.

Terrorist's right to freedom and due process

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 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 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 when designing counterterrorism tactics to battle Islamic terrorist and extremist groups. 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.

The War on Terror

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.

Habeas corpus. (2013) Columbia Electronic Encyclopedia. (6thed.), 1.

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.