Constitutional Due Process for Enemy Combatants under the Military Commissions Act of 2006

Wed, 16 Apr 2008 22:54:49 GMT

The Constitution protects against unjustified detentions by the federal government through the rights of 'habeas corpus' and 'due process.' However, a federal law passed in 2006 strips the right of habeas corpus, and essentially strips the right of due process, for detainees determined to be foreign enemy combatants held at Guantanamo Bay, Cuba. The law is the Military Commissions Act of 2006 and is the subject of several court cases, including Al Odah v. United States which was heard by the Supreme Court in December, 2007.

The stated purpose of the Military Commissions Act of 2006 is "To authorize trial by military commission for violations of the law of war, and for other purposes.” It was passed as part of the multi-faceted effort to combat the war on terror after the attacks of September 11th, 2001. Whether detainees have the right to habeas corpus or due process has been litigated in the courts because there is controversy about what type of trial accused persons are entitled to under the constitution.

Habeas Corpus

The writ of habeas corpus is one of the important safeguards of individual freedom found in the Constitution and the Bill of Rights. A "writ" of habeas corpus is the way in which a prisoner asks a judge to require that those holding him/her prisoner justify the incarceration. Without habeas corpus, there is no way for a person who is being wrongfully detained to challenge his detention, even if the detention has gone on for years. In Hamdi v. Rumsfeld, the Supreme Court ruled that US citizens cannot be denied the right to petition for habeas corpus. The Military Commissions Act, however, denies US courts the ability to hear a habeas corpus appeal from foreign detainees at Guantanamo Bay. Rather, alien detainees determined to be "enemy combatants" will be tried by separate military commissions.

Due Process

The 5th Amendment to the Constitution prohibits the federal government from depriving any person of life, liberty, or property, without due process of law. Due process generally means that a defendant must be given notice of the charges against them and the opportunity to be heard at a fair and impartial hearing. The Military Commissions Act provides each detainee with a hearing but severely limits the incriminating evidence that detainees may see, who a detainee may call as a witness and lowers the level of proof required to convict. The Supreme Court in Al Odah may determine whether these limited rights qualify as due process.

Citizenship

No American citizen captured anywhere, or any person caught in the US, is imprisoned at Guantanamo Bay. When John Walker Lindh, the famous “American Taliban”, was captured in Afghanistan fighting with the Taliban his status as an American citizen required the military to bring him to the United States. Yaser Esam Hamdi was an enemy combatant being held in Guantanamo Bay, Cuba. When the military learned he had dual Saudi Arabian and American citizenship he was transported to a military jail in the United States.

The federal government has argued that the Military Commissions Act is constitutional because constitutional protections to non-citizens only exist where a US court has jurisdiction to enforce them and under current law no federal court has jurisdiction over Guantanamo Bay. This means that the detainees in Guantanamo Bay are subject to confinement until the government decides to release them. As the war on terror is ongoing their continued detention may be indefinite.

The issue before the Supreme Court is does the Constitution treat people differently based on who they are and where they are. The Supreme Court has already determined that the Constitution grants rights to US citizens anywhere they may be. If the Court finds for Al Odah the Court may create the new rule that the Constitution also acts as a constraint on the US government irrespective of a person’s nationality or location.

For more information about due process, contact a lead counsel rated attorney by using our attorney search today.

What is Due Process? ... Basic Rights and Fundamental Fairness

Mon, 19 May 2008 18:23:41 GMT

You may hear the phrase “due process” in the media whenever a prominent criminal case is in the news, but where does it come from and what does it really mean?

Where is Due Process Found

Due process is a constitutional principle that our government must follow before it may take a person’s freedom or property. The 5th Amendment states, “nor shall any person be subject for the same offense to be twice guarantees due process from the federal government, stating no person shall “be deprived of life, liberty, or property, without due process of law.” The states are required to provide due process because the 14th Amendment states, “Nor shall any state deprive any person of life, liberty, or property, without due process of law.”

What is Due Process

A simple definition means due process requires notice and an opportunity to be heard before adverse action is taken against you. In criminal cases examples of due process include the need for probable cause to arrest someone and that a criminal defendant is presumed innocent until proven guilty by an impartial judge or jury. Due process does not just exist in a criminal trial, any time a person’s property interest may be taken due process protections also apply.

The courts have ruled that possessions such as a government issued license and even civil service jobs are property, which may only be revoked after a hearing. A quasi governmental organization like a homeowner’s association is also subject to due process requirements. If a homeowner’s association wants to fine a resident for bylaw violations such as excessive noise or because their house paint is the wrong color a hearing must first be held where the resident is given the opportunity to be heard.

Fundamental Rights

In addition to the "procedural due process" rights described above, which governs how the government must act, the constitution also guarantees "substantive due process" rights. While substantive due process is sometimes a difficult concept, it basically means that there are certain rights we hold to be so fundamental in our society that laws attempting to restrict them may be deemed to be unconstitutional. These “substantive rights” are considered to be so fundamental that they enjoy protection even if they are not explicitly mentioned in the Constitution. Even if procedural due process is followed in enacting and enforcing the law a substantive right “vetoes” the law.

Right to Privacy

The federal Constitution does not contain a right to privacy, but the courts have ruled that it exists. Our substantive due process right to privacy is the reason that the Supreme Court has prohibited the federal and state governments from enacting laws that completely restrict an adult’s choice to have an abortion, buy contraceptives or engage in consensual sex. The substantive due process right to marry has formed the basis for striking down laws prohibiting interracial marriage nationwide and gay marriage in Massachusetts. In Goodridge v. Massachusetts Department of Public Health the state Supreme Court ruled that excluding gay couples from marrying “is incompatible with the constitutional principles of respect for individual autonomy and equality under law."

There are many variations and applications of due process. At the core, however, is something to which we can all relate - due process embodies the notion that there are certain basic rights and fundamental freedoms we enjoy as individuals within our society, whether they are explicitly stated or not.

For more information about due process, contact a lead counsel rated attorney by using our attorney search today.

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