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Practice Area
The Homeland Security practice area I have selected for this assignment is detentions, specifically, indefinite detentions. According to Whitehead and Aden (2002), the U.S. Patriot Act and the Homeland Security Act allow security agencies to detain any person, whether a citizen of the U.S. or a foreigner, who poses a threat to the security of the United States (p. 1101). In this regard, D.H.S and other agencies have the power to detain such individuals. Such persons are often detained in private prisons or at the U.S. Naval Base, Guantanamo, for the case of terrorists suspected of engaging in armed conflict against the U.S. Since the international law does not prevent states from detaining armed forces in non-international armed conflicts, the U.S. authorities often exercise the right to detention unethically.
Ethical Issues
Long-term detentions as practiced by the security agencies raise some serious ethical issues. First, the lack of due process rights for foreign-captured detainees is not only an ethical issue, but it also goes against the rules and spirit of natural justice. According to Heymann and Kayyem (n.d.), long-term detainees are not given sufficient opportunities to present their case before a neutral trial for adjudication as to whether their designation as enemy combatants is valid (p. 2). The court in the cases of Hamdi v. Rumsfeld and Rasul v. Bush attempted to address this issue, but the decisions are not clear whether the due process rights of U.S. citizens and foreign-born detainees are the same. The second ethical issue concerning the extended detention is that significant portions of the laws of war and armed conflict that are being applied by the President and Congress, to persons within the purview of criminal law.
Addressing the Ethical Issues
The ethical issues raised above may be addressed using some recommendations. Concerning the due process rights, according to Heymann and Kayyem (n.d.), the Department of Defense needs to not only put in place a Combatant Status Review Tribunal but also run it effectively (p. 33). Such an initiative would allow detainees to challenge their status as enemy combatants. Moreover, detainees should be given a chance to have an attorney present during the process. With regards to the application of international armed conflict law to situations or persons that fall within the ambit of criminal law, Congress needs to create a statutory framework that is clear on its principles and approaches. Such a law should define zones of active combat as well as the rights of U.S. citizens and foreign enemy combatants so as to determine which rules apply.
Conclusion
The maintenance of the national security of the U.S. requires security agencies to have the power to arrest and detain those individuals who pose a threat to the security of the United States. However, the practice of the right to detain has led to some ethical issues such as the denial of due process rights as well as the misapplication of the laws of war to persons falling within the ambit of criminal law. Congress, in this regard, needs to provide a statutory framework that defines the rules and rights of detainees to avoid unethical detentions.
References
Heymann, P. B., & Kayyem, J. N. (n.d.). Long-term legal strategy project for preserving
security and democratic freedoms in the war on terrorism. The National Memorial Institute for the Prevention of Terrorism (MIPT). Retrieved from http://www.belfercenter.org/sites/default/files/le…
Whitehead, J. W., & Aden, S. H. (2002). Articles forfeiting “enduring freedom” for
“homeland security“: A constitutional analysis of the USA PATRIOT Act and the Justice Department’s anti-terrorism initiatives. American University Law Review 51, p. 1101. Retrieved from https://www.wcl.american.edu/journal/lawrev/51/correctedaden.pdf.
“During the War on Terror, people charged for suspicion of plotting or carrying out attacks were imprisoned by the military which labeled the potential terrorists as enemy combatants. If they were viewed as just a criminal it would mean that they accepted domestic law but by viewing them as soldiers they were placed beyond domestic laws. The courts were prevented from intervening on the grounds that there is no designated role for the courts in wartime. The separation of powers was bypassed and the military handled the cases of the enemy combatants. Even though some of them were citizens, as a result of this label, they were stripped of their rights. They had no access to lawyers or opportunity to challenge their status as an enemy combatant. They also could be detained indefinitely or handed over to other states known for mistreatment of prisoners. Guantanamo Bay was chosen to be a location for prisoners because the U.S. has jurisdiction but no full sovereignty there. Most of the detainees at Guantanamo Bay have not been charged with any crimes and very little actionable intelligence has been derived from the interrogations (McNeal, 2010). In Johnson v. Eisentrager the court decided that detainees are not enemy combatants because they are not nationals of countries with which the U.S. is formally at war and dispute having been engaged in warfare against the U.S. They also have not been accorded a procedure to determine the truth of their claims or have been formally charged with wrongdoing. The case also determined that no single court has clear jurisdiction but the prisoners have the right to have their habeus corpus petition heard. In response, the military created Combatant Status Review Tribunals to comply with the determinations (Wilke, 2005).
Wilke, C. (2005). War v. justice: Terrorism cases, enemy combatants, and political justice in U.S. courts. Politics & Society, 33(4), 637–669.
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