The Rights of Accused Terrorists: George W. Bush's and Barack Obama's Treatment of Accused Terrorists in the War on Terror Has Often Fallen outside Constitutional Boundaries - and That's Bad for Americans
Eddlem, Thomas R., The New American
Presidents Bush and Obama have created a vigorous public debate since the September 11 attacks over whether suspects in the "war on terror" are entitled to a regular criminal trial, court-martial (the regular military justice system), or a "military commission" trial, or whether they are entitled to a trial at all. A "military commission" is traditionally an executive branch (or Article II) court, created to try war criminals in a time and place where there are no criminal or ordinary military courts to try suspects. But Congress has explicitly authorized them twice since the September 11 attacks.
Bush's and Obama's actions since 2001 raise a number of fundamental constitutional questions: Can the President--as Bush tried to do--detain an American citizen indefinitely without trial? Can the President--as Obama claims--kill American citizens without trial? Are Bush's and Obama's efforts to detain foreigners indefinitely without trial constitutional? When, if ever, is a "military commission" constitutional? Can U.S. citizens be subject to a military commission? How about foreigners? Do the Bush/Obama military commissions follow the Constitution? And finally, putting aside constitutional principles, are military commissions more effective on a practical level in punishing suspected terrorists?
The following are 11 constitutional principles about the trial rights of Americans and foreigners during the "war on terror."
1. The U.S. Constitution, laws, and treaties signed by the United States guarantee everyone--even foreign terror suspects detained abroad--a trial.
The Bush administration argued in the 2004 Supreme Court case Rasul v. Bush that foreigners detained abroad have no right to a hearing and can be detained indefinitely without any trial whatsoever. The claim goes against the traditional Anglo-American tradition of habeas corpus, which says that no one may be detained without a court hearing justifying the detention. The Bush administration argued that "U.S. courts lack jurisdiction over [habeas corpus] claims." But the Supreme Court ruled against the Bush administration, 6-3, in the Rasul decision, granting Rasul habeas corpus relief and a trial.
And the Supreme Court was not exercising judicial activism; rather, it was following the clear dictates of the law. The Fifth and Sixth Amendments to the U.S. Constitution explicitly require a trial and full due process for any "person" the government arrests. The Fifth Amendment reads, "No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law." The Sixth Amendment defines "due process" as follows: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
In short, while the Fifth and Sixth Amendments do not explicitly require a detainee to be read his rights (i.e., "Miranda rights," which the Supreme Court invented in the 1960s as an add-on to the Fifth Amendment), all detainees are still "persons" within the meaning of the amendments and are entitled to all the due-process rights of American defendants.
The U.S. government is also a signatory of treaties that guarantee that foreign military fighters be given a trial. Article 43 of the Fourth Geneva Convention (1949), of which the United Stales is a signatory, bans "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. …