The protection of the fundamental rights and Freedoms envisaged under the United States Constitutions are the hallmark of democracy today not only in the Country but in the entire world. This rights in the Constitution are referred to as the Amendment rights. There has been and will continue to be widespread jurisprudence on these Amendment rights. These rights as some may say have proven to be an equivalent to a guardian angel of the American People. The Amendment Rights have out done any form of inequality before the law. These Amendment rights which total up to ten in number. They include;
Freedom of Religion, Speech and Press.
Right to bear arms.
The Housing of Soldiers.
Protection from unreasonable searches and seizures.
Protection of the Right to Life, Liberty and Property.
Rights of Accused persons in criminal cases.
Rights in civil cases
Excessive fines and bail forbidden
Other rights kept by the People
Undelegated Powers Kept by the State and the People (Montfield, 2012).
The above rights form the Hallmark of the rule of Law in the United States. However, as it is known to many, the US is often referred to as the land of the Free. This particular phrase has been put test in the recent past. After 9/11 everything in the United States changed. The Phrase Land of the Free was perceived as a weakness to the people. The government inaugurated draconian law like the Patriots’ Act, which not only limits several rights in the constitution but also spells out the manner of handling enemy combatants and exempts them from the benefits of those rights.
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Several proponents have been raised to say that the Amendment rights should only apply to the citizens of the United States as opposed to the rights applying to anyone within its borders. The proponents of these arguments have cited their reason that America’s enemies enter their borders and carry out attacks or even plan to carry out terrorist attacks. When apprehended, they plead to the constitution and the Amendment rights after they have harmed the very same people who gave life to the Constitution by promulgating it. However, the liberalist have stuck to the phrase ‘Land of the free’ and they propel the idea that Amendment rights in the Constitution should not only protect American Citizens but anyone within its borders so long as they are not enemy combatants or prisoners of war. They argue that America is a diverse Country and other jurisdictions in the world always looks up to them in terms of democracy and protection of fundamental rights and freedoms. They further propagate the idea that if such rights are not granted to such persons it would demonstrate a bad example to the rest of the world. This paper therefore seeks to critically analyze these two schools of thought, assessing the line between terrorism and right to fair trial, and the protection of civil liberties at the expense of keeping America safe.
Constitutional Rights and Terrorism Suspects in the United States
The debate as whether or not to grant terrorism suspects Constitutional rights has been an emotive issue in the United States post 9/11 terrorist attacks. “A foreign member of al Qaeda should never be treated like a common criminal and should never hear the words ‘you have a right to remain silent.’ Joint statement of Republican Senators Kelly Ayotte of New Hampshire, Lindsey Graham of South Carolina, and John McCain of Arizona, quoted in The Washington Post on March 31, in an article by reporter Peter Finn, titled “Somali’s case a template for U.S.” The three senators made such a comment twice in March when the U.S. government revealed it had brought foreign nationals suspected of terrorism to the U.S. for prosecution in a civilian court (Arden , 2015).
With the setting up of a Military detention camp at Guantamo Bay Camp. The system of trying terror suspects in Military Commissions was inducted. However, several allegations have been leveled against the Private Military Contractors who were mandated to run this particular facilities. These allegations range from murders to torture, inhumane treatment and grave violations of human rights. These particular persons were held definitely without trial and some died during what the Central Intelligence Agency referred to as Enhanced Interrogation. They allegedly employed methods such as water boarding, electrocution and injection of potentially poisonous substances to terror suspects with a view of getting them to co-operate and provide information on accomplices and terrorism cells in the US. These particular suspects were not accorded any Constitutional rights as they were argued not to be US citizens and not within the jurisdiction of the United States. However, one aspect that was not considered is that these persons were prisoners of the United States government and as such, they ought to have been granted the constitutional rights and freedom under the United States Constitution. The then administration feared that by trying these suspects in the US civilian courts, they would have to be accorded full rights under the law as opposed to trying them in military commissions, which regarded them as enemy combatants, and they could therefore not be granted any rights pursuant to the Patriots Act.
According to statistics however, only seven of the terror suspects tried in Military Commissions were convicted compared to 67 terror suspects who were convicted by the civilian courts. There are several advantages in granting a terrorist rights in the constitution. It is a well-known notion that fire cannot be put out by more fire. By trying these suspects in civilian courts and granting those rights it first of all removes the hanging of criminal charges against them when held without charges. Additionally, it also levels the ground for a fair trial as opposed to extraordinary rendition or detention without trial where one is not given an opportunity to defend themselves. The Supreme Court has not yet had a chance to say, in a post-9/11 terrorism case, whether “Miranda warnings” do apply to foreign nationals captured abroad in a terrorism investigation. Nevertheless, when the Justice Department opts for a prosecution in civilian court, it proceeds on the premise that the Fifth Amendment literally applies to “any person,” protecting that individual from being compelled to be a “witness against himself.” Beyond the Miranda warnings issue, there is a long tradition in America that military trials should not go forward when the civilian courts are open and operating, even during wartime. That was clearly established by the Supreme Court’s 1866 decision in the case of Ex parte Milligan . Whether that precedent governs during a “war on terrorism” apparently is still open to debate, however.
Protection of Civilian Liberties Vis a Vis Public Safety in Terrorism Cases
The Protection of civilian liberties in the United States is a highly guarded right. These include right to privacy, right against illegal search and seizure and other civil liberties protected under the constitution. However, the war on terror has brought these particular right into disarray. This is because of the enactment of the Patriot Act, which many law enforcement agencies have abused in the name of national security. These particular statute provides for search and seizure, surveillance of persons but only with probable cause. These particular loopholes in law have enabled the law enforcement agencies to engage to illegally run surveillances on suspected terrorist in total disregard of their right to privacy. These include; phone call wire taps, cameras and email access. In most civilian courts, this evidence is challenged successfully as it is acquired in a manner that violated the amendment rights of the terror suspect. It is advisable for the law enforcement agencies to observe the law before, during and after investigation of terrorism cases if the fight against terrorism is to succeed. They ought to acquire court orders before running surveillances on wire taps on suspected terrorist. This is because such orders are only issued upon proof of probable cause. If the law enforcement agency does not prove this, most courts shy away from granting such orders that violate the amendment rights of a person (Murphy, 2009).
Conclusion
In order to win against terrorists and terrorism we ought not to become the terrorists ourselves. As America we ought to uphold the rule of law and defend the constitution that defines us as a people and all that we stand for. One cannot over emphasize the need for public safety especially in this time and age. However, it is not a green light to violate the rule of law. Terrorism suspects ought to be tried and convicted after a fair trial and being put to their defense. Extraordinary renditions and detention without trial will only continue to divide us further as we will be leaving fate to the hands of man as opposed to the rule of law. True to the words of Senator John Mc Cain Human rights first is a premier institution which is devoted to the noblest of causes.
References
Arden, M. (2015) Human Rights and European Law: Building New Legal Orders . Oxford University Press. Chapter 4 Human Rights and the Age of Terrorism Pg 54.
Montfield J. (2012) Constituting America; Bill of Rights, 22, 236-252. Retrieved July 26, 2018 from; < http://constitutingamerica.org/bill-of-rights/?gclid=CjwKCAjw4uXaBRAcEiwAuAUz8F5WL7L0ev4UaxmnyihNesyaKk8KtfXj49sRWMRJQ3r8moH2e1xzohoC76wQAvD_BwE#toggle-id-11
Murphy, J.M (2015). Detaining and Prosecuting Terrorism Suspects Retrieved July 26, 2018 from; < https://www.humanrightsfirst.org/resource/detaining-and-prosecuting-terrorism-suspects >
