Unlawful Detention at Guantanamo Bay

Unlawful Detention at Guantanamo Bay

In his book The Enemy Within, author Stephen J. Schulhofer notes, "In the two months following September 11, approximately 1200 foreign nationals living in the United States were arrested and detained by federal law enforcement agencies," (11). In addition to these foreign nationals, who are detained at Guantanamo Bay and other disclosed and undisclosed locations, a number of United States Citizens have been detained for indefinite periods of time: without judicial review, without adequate or private access to legal council, and often times under harsh conditions. Cases like that of Abdullah al Muhajir, an American citizen born Jose Padilla, illustrate how since September 11, the government has systematically violated national and international law, restricting the rights and freedoms of individuals. The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures and guarantees the nation's citizens a reasonable expectation of privacy in the case of legal searches or seizures of property or of information. The Fourth Amendment has been repeatedly violated by the American government under the guise of national security and the PATRIOT Act. The Fourteenth Amendment to the United States Constitution sets forth the "rights, guaranteed privileges and immunities of citizenship, due process and equal protection," which are clearly outlined in section one of that constitutional amendment (FindLaw.com). The detention of American citizens in military prisons and other locations shows how the Bush administration has willfully violated the fourteenth amendment. Additionally, the treatment of the prisoners at Guantanamo Bay, almost all of whom are from Muslim countries, violates both U.S. National Law under the "Torture Victim Protection Act" of 1991, as well as the 1987 United Nations' Geneva "Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment."

The Torture Victim Protection Act from United States Code National Law, instated in 1991, establishes liability, exhaustion of remedies, and a statute of limitations regarding cases of torture. Section 3b of the Torture Victim Protection Act defines the term "torture" to include "any act, directed against an individual in the offender's custody or physical control, by which severe pain or suffering ... whether physical or mental, is intentionally inflicted on that individual." Exceptions involve instances in which the pain or suffering was "inherent in, or incidental to, lawful sanctions," a clause that is ripe for misinterpretation and misuse. Torture is similarly defined by the Geneva Convention, which states that "no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment." Guantanamo Bay may indeed violate both federal and international statues regarding torture.

In addition to mental and physical torture techniques that the American government may be guilty of, the Bush administration has also repeatedly restricted civil liberties and violated constitutional law. "The national security measures adopted since September 11 ... compromise important freedoms in ways that previous presidents never attempted," (Schulhofer 10). Moreover, Schulhofer notes that "important changes in the law have been adopted by the Department of Justice unilaterally, without public input or congressional approval," (10). These sanctions even counteract the recommendations set forth in the 9/11 Commission Report, which advocates an "enhanced system of checks and balances," (394). If the Department of Justice is acting "unilaterally, without public input or congressional approval," then it is not acknowledging the system of checks and balances that should be in place.

The 9/11 Commission Report advocates a balanced approach: "we must find ways of reconciling security with liberty," (395). However, the Bush administration has repeatedly demonstrated an inability to follow the advice of the 9/11 Commission Report. Schulhofer notes that "the demands of national security have prompted wartime presidents to impose unusual limits on freedom of speech, the right to jury trial, and other individual liberties," (7). It is understandable that especially when terrorist means of attack are surreptitious and unusual that some restrictions on civil liberties be instated. For instance, the 9/11 Commission Report notes that increased airport security measures should be put in place and that information should be readily shared between government agencies. However, the sharing of information between government security agencies, and the gathering of information using potentially invasive means such as high-tech surveillance, must be undertaken so that an individual citizen's right to privacy is not violated and civil liberties are protected.