By Giovanni Pallotta
(This publication is part of Giovanni Pallotta’s academic dissertation “Habeas Corpus in US legal order”).
In conducting my research, I have tried to render explicit a concept that seemed implicit upon starting my work. In other words, by studying Man’s inalienable rights, and in particular, Habeas Corpus, it is possible to identify a dichotomy between moments of peace and extraordinary moments of crisis. More tolerant legislation belongs to the first moment, whereas, more severe legislation belongs to the second moment. If this consideration appears obvious, the process that brings about certain consequences is by no means obvious. However, the dichotomy presented is actually false, for it is impossible to divide history into immense segments of “before” and “after.” History represents a continuum where the present cannot disregard the past and it cannot influence the future. For example, it may appear to a careless reader that the 1861 Suspension Clause has little to do with the Sedition and Espionage Act of 1917. However, it is undeniable that the latter represents the juristic change of the first, therefore the legislator in this sector does not substantially, recognize moments of peace and moments of war, but lives in a state of perennial vigilance and must always be ready to intervene in cases of extreme necessity.
The most evident example arises from the September 11, 2001 terrorist attacks and in the immediate response by government authorities. As we have seen, public opinion was extremely nervous and a mass media campaign immediately started asking Congress to intervene effectively. In the days that followed the attacks, many representative asked themselves how further attacks could be avoided and how to tranquilize American citizens. The post September 11th proposals were the results of collective hysteria that ran rampant in the country. These proposals ranged from expelling all citizens belonging to the Islamic religion, impeding the publication of texts in Arabic and controlling cable television in order to prevent terrorists from communicating using special code words on Arab stations.
These proposals were deemed as inapplicable and various congressional groups worked on two fronts, the first was to strictly control the national territory while the second regarded the total blocking of international financing to terrorists, thus eliminating any possibility of organizing other attacks..
The initial measures The Anti-Terrorism Act of 2001 and Financial Anti-Terrorism Act of 2001 were presented by both party members. The two bill proposals were unified, above all for a matter of image, in other words to the give the country the idea that the American Congress had taken compact and determined steps to give the nation the tranquillity that it needed in that moment.
Following an encounter between Democrats and Republicans held on October 1st, the need to unify the legislative action became evident, so on October 2nd, the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001 was presented. It had initially been blocked by the Progressive wing of the Democratic Party and this stalemating had tried to bring about several attempts of amendment. In any case, the Patriot Act did not undergo any great change and so, on October 12th, it was approved by the Senate and on the 23rd it gained approval from the House of Representatives. The voting results were clamorous- it passed 98 to 1 in the Senate and 357 to 66 in the House of Representatives. President George W. Bush signed it into law on October 26th, 2001. The final document consists in ten titles that regard in every aspect and detail the nation’s security:
TITLE I: enhancing National Security against terrorism
TITLE II: enhanced surveillance procedures
TITLE III: international money laundering abatement and anti-terrorist financing act of 2001
TITLE IV: protecting the border
TITLE V: removing obstacles to investigating terrorism
TITLE VI: providing for victims of terrorism, public safety officers and their families
TITLE VII: increased information sharing for critical infrastructure protection
TITLE VIII: strengthening the criminal laws against terrorism
TITLE IX: improved intelligence
TITLE X: miscellaneous
Therefore, we are presented with a total rapid and significant reordering of the very concept of internal security. The major criticism to the Act arose from the Progressive left wing and stated that such an important document seemed to be totally cryptic and difficult to interpret for those people who were not experts in the field of law. In fact, it is not stated in the Act what measures can or cannot be taken, but it is a constant referring back to previous legislative acts that have been amended. In order to clarify its confusing nature, I cite Article 2 from Title II which affirms: “articles 2516, Title 18, from the United States Code of Law, modified through the elimination of Article 1341 (concerning postal fraud) and the insertion of Article 1341 (regarding postal fraud) , a serious violation of Article 1030 (regarding fraud and information abuse). In simpler words, the law lacks clarity and it represents a monstrous misuse of language while harbouring a complexity of interpretation that borders on the absurd.
Going beyond the fact that the law’s difficult juristic language, it once again reinforced the institutions of the Federal Agencies such as the FBI and enhanced the intelligence units of the CIA and NSA thus providing the possibility to set up ad hoc structures of the detention of individuals accused of terrorism. The first few months following the September 11th attacks and the post Patriot Act period, brought about the creation of a high security prison in Guantanamo where accused terrorists captured on American territory or thanks to the co-operation from other nations were held.
The prison in Guantanamo (Cuba) symbolizes the tombstone of any human right and in particular regarding Habeas Corpus. The inmates, all of whom were not American, but citizens from other countries captured abroad, often did not know what they had been charged with. In prison, psychological torture based upon sleep deprivation and other similar techniques often caused inmates to commit suicide or to attempt killing themselves.
From a juristic point of view, the prison is a true limbo, in other words, the trials are held by military authorities that constitute themselves as the accusation and a court assigned defence for the prisoner.
The accused cannot nominate a lawyer to represent him in court, at most, he can appoint a legal firm to compose a statement of defence that will then be turned over to his defence lawyer, a military official, who may decide to use the statement in the best way he may deem fit.
The deficiencies of this legal system are blatant. No military official is willing to ruin his future career to defend a man accused of terrorism while civil lawyers unable to take part in the trial and are left out completely.
It is not a surprising fact, that 80% of the cases tried, when they were tried-given the fact that the procedure is not automatic and requires authorization from the Justice Department, ended up with a guilty sentence for the accused.
This system is based on one hand, on extremely difficult to comprehend legislation and on the other, on a simple and arbitrary system of arrest. The act could not and cannot fail to provoke highly complicated sentences and legal disputes. However, we must keep in mind that the PATRIOT ACT is still in vigour, although it was amended in 2005, in order to guarantee the right of privacy to those detained who wanted to use the public library lending system.
Regarding Habeas Corpus,(as we have seen in this work, the PATRIOT ACT is an encyclopaedia on every aspect pertaining to national security, but for our research, we will concentrate on this specific right), the case of Hamdi vs. Bush is emblematic. Yassir Hamdi, a resident American citizen, found himself for work purposes in Afghanistan in August 2001. He was captured by Afghan forces who then turned him over to American authorities with the accusation of being a terrorist. At first, he was transferred to Guantanamo. Later on, it was discovered that Hamni was an American citizen, and for this reason moved to a prison in Charleston, South Carolina with the accusation of being an enemy combatant. He later accused the American government of being unjustly detained as an enemy combatant without any form of Congressional authorization, which was necessary in this case, as Hamni was an American citizen. The American government responded to this by referring to Article II from the Law on Legislative Powers in times of war and recalled the that Congressional Authorization for the use of military forces (AUMF) issued in 2001 authorized the imprisonment of American citizens found among enemy lines. Therefore, Hamni’s arrest was authorized, due to the fact, that he had been captured armed in an area of combat.
The Court called in to make judgement, affirmed that the government’s actions were just; in other words it was right in authorizing the detention of even an American citizen, without Congressional approval. However, in Hamni’s specific case, there was no proof that he was involved in combat, but that he was bearing arms for his own personal protection as he himself had declared. The Court’s decision was the wisest possible, Hamni was released and immediately expelled from the country thus losing his citizenship rights and deported to Saudi Arabia where he resided with his former family with the obligation of not leaving the country.
The most noteworthy case, however, concerning Habeas Corpus and the PATRIOT ACT regards the case of Boumediene vs. Bush (2008). This very case signalled the end of the concept of the PATRIOT ACT. Lakdar Boumediene is Algerian and for work purposes was living in Bosnia in the year 2000. In 2005, he was arrested by the Bosnian police on the grounds of organizing an attack on the American Embassy in Sarajevo. He immediately appealed to the Supreme Court affirming that in the prison in Guantanamo no human right and above all Habeas Corpus was respected. The Bush administration responded at two levels, first of all, it enforced the Authorization for Use of Military Force(AUMF) and therefore the prisoner had no right to any type of appeal. Secondly, it declared that the American base situated on the island of Cuba did not represent American territory and therefore prisoners held there could not appeal to American legislation and the American Constitution.
In my opinion, the issue regarding the Guantanamo Base requires further explanation. It is situated on Cuban territory and in 1898, during the Spanish-American War, it was used by the Marines for landing operations on Cuban territory thus constituting a fundamental hub for troop movement. In 1903, at the end of the Cuban War for Independence, the first President of the country, Tomas Estrada Palma, a loyal follower of the Americans wanted to settle the base’s situation. He offered the Americans a perpetual lease for an annual 2,000 dollar fee, consequently raised to 4,000 dollars in 1934. However, following the Castro Revolution, the Cuban government ripped apart the cheque for the rental fees that the American government had issued and underlined the fact that the presence of the American base was seen by the Cuban government as a military occupation by the Americans.
It can be stated that from a juristic point of view, the Guantanamo territory has been leased perpetually and this obviously makes it difficult to interpret, therefore reinforcing the Bush Administration’s theory. For these reasons, the verdict issued in 2008, by the Supreme Court Judge, Anthony Kennedy was destined to influence jurisprudence in a legislative system of Common Law. It was to be also considered of historic nature.
A decision in favour of the accused would have put the whole prison system and court procedures at Guantanamo into discussion. While a verdict favouring the Bush Administration (which had almost reached the end of its mandate) would have not only sealed the appropriateness of the Guantanamo Operation from a juristic viewpoint, but it would have also probably coincided with the a reinforcement of prison regime, thus leading to further impoverishment of human rights on the premises. The verdict reached by the US Supreme Court had been fiercely debated: five judges expressed a vote in favour of Boumediene while four members were in favour of the Bush Administration. In the motives of the verdict, Judge Kennedy justifies the sentence affirming that a lease with no expiration date (which managed to endure during the Castro Revolution) was by de facto an American territory although not seen so by the law. Therefore, the American Constitution was to be applied and that Article I of the ninth section of the Constitution was to be found applicable. Following the reading of the verdict, another six practically identical instances were put forth. For these and other reasons, President Barack Obama has started procedures for the shutdown of the prison in Guantanamo which had been seen as the emblem of President Bush’s ultraconservative tendencies.
Giovanni Pallotta
Photo credits: Pres.Bush signs Patriot Act/The White House
