Analyzing Constitution and Homeland Security

Constitution/Homeland Security

FISA

FISA -- The Foreign Intelligence Surveillance Act dictates the way the United States government carries out communication surveillance (e.g., telefaxes, emails, telephone calls, Internet websites, etc.) that passes through the United States physically and both the recipient and the sender or either of the two are/is a foreign power, according to FISA definition. FISA's initial purpose, as far back as in 1978, was to make use of the FISA Court to try abuses from governmental agencies, which spied on citizens of the United States in the 70s (Standler, 2007).

Patriot Act:

The Patriot Act enables investigators to make use of the already available tools to carry out investigations on drug trafficking and organized crime. A number of the tools made available by the Act for law enforcement agencies to wage war against terrorism have been in use in the fight against drug trafficking, organized crime, and terrorism for several decades, and have been approved and reviewed by the law courts (DoJ, n.d.).

3) AUMF:

Barely a week after the World Trade Center and Pentagon attack, The Authorization for the Use of Military Force was hastily passed by the United States Congress to checkmate this new threat and the new challenges it brings (CRONOGUE, 2010). The President was authorized by this statute to:

Make use of every appropriate and necessary force against those countries, organizations, or persons he feels were part of the planning, authorization, execution, or provided any sort of help to the terrorists who carried out the September 11, 2001, attacks, or provided a place of refuge for such persons or organizations, as a way of preventing all future global terrorism acts against the U.S. by the same countries, organizations or persons (AUMF, 2001).

4) Geneva Convention:

One major aspect of the international humanitarian law can be found in all four 1949 Geneva Convention covenants, which all countries in the world have adopted. Two more agreements have been reached to further expand and supplement the Conventions:

The 1977 additional Protocols, with regards to providing protection for armed conflicts victims, coupled with The Additional Protocol 111 of 2005, which relates to adopting more unique emblem.

These Conventions make some specific rules available for safeguarding soldiers, or military men, who are sick, wounded, prisoners of war, civilians, or shipwrecked, as well as military chaplains, medical personnel and military support workers (ARC, 2011).

5) Hamdan vs. Rumsfeld:

The landmark Rumsfeld v. Hamdan decision, that the Supreme Court issued on June 29, 2006, ushered in some very significant amendments to the American culture of judicial regard. Simultaneously, it throws more light on the doctrine of separation of powers, the role the Supreme Court plays, the rights of Guantanamo inmates as well as the implementation of international humanitarian law under the context of the global war of terrorism. The Yemeni citizen, Salim Ahmed Hamdan, was arrested in 2001 while the hostilities between the Afghanistan Taliban and the Unites States forces lasted. The Afghani militia caught him and handed him over to the United States military. In 2002, he was transported to the United States Naval Base in Guantanamo Bay, and after a year, the President ordered that in agreement with the November 13 Order, he should be tried by the military commission (Keller & Forowicz, 2007).

6) Ex-Parte Quirin:

The petitioners, eight German citizens who reside in the United States, were caught by the U.S. while trying to gain entrance into the United States during the time of war, allegedly with the aim of espionage, sabotage, warlike or hostile acts, or certain violations of laws guiding war times. The United States President ordered the petitioners to be tried before a military tribunal pursuant to the provisions of the Articles of War, 10 U.S.C.S. @ 1471-1593. The President's ruling was challenged by the petitioners, with the argument that under the Constitution art. 111, @ 2, amendments. V & VI of the United States, the petitioners reserved the right to order that a jury try them in civil courts under the common law. According to the court, the petitioners were believed to be illegal belligerents, and that under the Articles of War, they did not deserve to be tried by a jury or in a civil proceeding. According to the court, trying petitioners before a military tribunal does not violate the United States constitution amendments V & VI regarding criminal prosecutions and crimes and cannot be said to be illegal. The court upheld the authority of the President to try the petitioners before a military tribunal in the absence of a jury. (Ex ParteQuirin et al., 1942).

7) Military Commission Act of 2006:

President Bush gave a Military Order (M.O) on November 13, 2001 that authorized non-citizens suspected to have participated in the anti-terror war by a military commission. The military commissions created following the M.O., were disbanded by the Supreme Court citing their non-compliance with the UCMJ-Uniform Code of Military Justice. To give military commissions the permission to move forward

In order to give military commissions, the permission to move forward, Congress approved the 2006 Military Commission Act (MCA), issuing authority to propagate rules that deviate from the UCMJ strictures and probably the United States International obligations. Regulations to govern the MCA pursuant of military commissions were published by the DOD. Under those regulations, three prosecutions resulted in convictions (Elsea, 2009).

8) Ex-Parte Milligan:

A military commission can be defined as a court that comprises of military personnel that perform different roles, which includes trying hostile forces for violating the laws of war. Regarding an Ex-parte Milligan, carved out 12 months after the Civil War ended, the Supreme Court argued that the United States military lacked the constitutional right to try any United States citizen resident in Indiana during the war before a military-led commission. All the 5 judges concurred that it would have amounted to gross violation of the constitution if the military had carried out the trial, even when the Congress had okayed the trial; whereas 4 Justices who concurred merely drew a conclusion that the trial was anything but legal because it went against the limits the Congress introduced. Though this decision was made when the Civil War ended, it is mostly referred to as a very rare and esteemed case where the Supreme Court cancelled the action of the Executive during wartime as a way of protecting civil liberties. (Bradley, 2008).

9) Boumediene vs. Bush:

Under the consolidated cases of Al Odah v. The United States and Boumediene v. Bush, which were decided on June 12, in 2008, in a 5-4 opinion, the Supreme Court submitted that all aliens tagged enemy forces and held at the United States' Guantanamo Bay, Cuba Naval Station, reserve the constitutional right of habeas corpus. The court, at the same time along same lines, discovered that § 7 of the MCA-Military Commission Act, (which placed a limitation on the powers of the judiciary to review the determination of the combatant status of the enemy forces by the executive arm of government), failed to make an adequate habeas substitute available. therefore, it could be said to have acted as an unlawful suspensions of the summons of habeas. (Garcia, 2008).

10) FISC: Foreign Intelligence Surveillance Court

The Foreign Intelligence Surveillance Court (FISC) under the Foreign Intelligence Surveillance Act 1978, reviews the government applications to carry out surveillance and engross in data collection for purposes of foreign intelligence. It is an Article III court that includes eleven district court judges which are chosen by the Chief Justice of Supreme Court from at least 7 regional judicial circuits (Cole & Nolan, 2014).

2) Outline the arguments for and against the trial of key 9/11 detainees in the Federal court in lower Manhattan.

U.S. courts have convicted many terrorists successfully

The United States federal courts have fought against terrorism admirably, whether the federal court judges see it that way or not. As of date, the United States civilian courts have executed 195 terrorism-related cases since September 11 attack in 2001, according to the figures by the Department of Justice, 91% of those trails have led to the convictions of terrorists (Debate: Trying 9/11 terror suspects in NYC courts, 2010).

Khalid Sheikh Muhammad will probably be convicted in NY civilian courts.

Some argue that Mr. Mohammed might possibly use the quirks of the criminal justice system to gain his freedom. That is however, most unlikely. Firstly, he has confessed to the crime already; and going by the zero acquittal records of New York terrorists in the past; any fears concerning a Not Guilty verdict appears a remote possibility.

Terrorists could still be detained if acquitted in local courts

According to Eric Holder, at a Congressional Hearing in November on his plan to carry out the trials of terrorists in New York: We will keep holding them under the laws and rules of war. We do believe we reserve the power to do just that (Debate: Trying 9/11 terror suspects in NYC courts, 2010).

Against

Trying terrorists in civilian courts risks acquittal

There are higher risks of acquittals and hung juries in trying terrorists in civilian courts because of the high possibility of the defense attempting to play some cheap politics with the trial. This could result in setting the terrorists free.

Detaining Khalid Sheikh Muhammad after he has been acquitted would amount to a subversion of justice.

Everyone is quite aware of the fact that KSM will never walk free irrespective of the outcome of the trial. The rest of his life will be spent in custody in the United States; which means the entire trial was nothing more than a mere charade from the onset.

Civilian courts face risks from measures to look into acquittals

There is a high risk that, in order to guard against any acquittal, precedents and rules that govern criminal proceedings will be altered in such ways that would cause lingering, on the system of justice (Debate: Trying 9/11 terror suspects in NYC courts, 2010).

3) Compare and contrast the Obama and Bush approaches and policies to the treatment of detainees captured in the aftermath of 9/11.

The efforts of the administration of President Bush following the September 11 attacks include overthrowing the Afghanistan Taliban regime, disrupting the al-Qaeda's infrastructural power, and capturing and killing some of the worst actors in the terrorist groups. Nevertheless, to balance things up, it also involved violating the international and local legal standards that relate to torture, meting out inhuman treatments to terrorist prisoners indefinitely; setting up foreign prisons overseen by the CIA; making use of illegal rendition; and engaging the services of broad domestic and international warrantless surveillance with no court supervision. (Cutler, 2010).

Most of the detainee policies of the Obama administration follows the policies of the Bush administration closely, as modified and implemented by the United States Congress and the Civil Courts, then was anticipated by many at the inception of this present administration in 2009. Such succession is mostly a result of the irreversible nature of policies inherited by Obama from the Bush administration, partly because they were mostly policies of the executive branch which presided over by Presidents, and partly because of the learning method that President Obama underwent in his transition from being a member of the U.S. senate, to the democratic presidential candidate, to becoming the commander-in-chief and chief executive of the United States (Cutler, 2010).

4) Outline all the differences that exist between trying an individual before a civilian court and a military commission.

While the U.S. government has instituted military proceedings against suspected hostile belligerents held prisoners at Guantanamo; the administration of President Obama has advanced further, to pressing charges in the United States criminal court against people suspected to have participated in terrorism-related activities in the U.S., and some people suspected of terrorism who are in the United States custody abroad and were not sent to Guantanamo. Some people who displayed strong opposition to using the United States criminal courts make the argument that sending the terror suspects into the United States for trials is a huge security risk which discloses classified information, and this could easily result in the guilty being acquitted (Elsea, 2014).

Others have voiced their support for the fairness and efficacy of the federal court system. They argue that it is most suitable for the criminal trials of terrorists, suspects and war-criminals, and have equally voiced their confidence in the ability of the courts to provide adequate national protection, while administering that all allies of the United States abroad perceives it as such. Some keep objecting to trying the detainees by any military commission, in spite of the enacted amendments of Congress as a part of the 2009 Act of the Military Commission (MCA), P.L. 111-84. (Elsea, 2014).