Thursday, August 16, 2012

LD 2012 Due Process - Legal Framework

For part one, click here.
For links to other LD topics, click here

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty or safety” - Benjamin Franklin

Three Affirmative Frameworks
I will present three possible frameworks for the Affirmative position in this analysis.  There are other ways to make a case other than the ones I will present and I encourage debaters to think in and out of the box when approaching this resolution.  Perhaps you will write an Affirmative and after writing a Negative decide to rewrite the Affirmative since then you will realize potential problems in your initial approach.

Over the next several articles on this topic I will lay down a legal framework, a policy framework, and a value framework so look for additional postings on this topic in the coming days.

The Affirmative Legal Position - Overview
The legal framework of this case, will assume a flawed legal position in the status quo.  The Affirmative will question the current legal basis, even the current interpretation of the U.S. Constitution.  The Affirmative will argue that the founding fathers had no intention of denying anyone of their natural rights without the benefit of due process.  This kind of case framework is useful to preempt negative positions which root their values, or solvency in a legal context.  Such negative points of view would hold that no moral or just nation would willfully violate the laws of the land.  Alternatively, the negative position would hold that current interpretation of the law is correct because it has been effective in reducing terrorism.

A Definition of Terrorism
Guiora, 2010, Due Process and Counterterrorism:
Terrorism is an act by an individual or individuals intended to advance one of four causes: religious, social, economic, or political; for the purposes of advancing the identified cause, the actor kills or harms innocent civilians or causes property damage to innocent civilians or intimidates the civilian population from conducting its daily life.
This definition incorporates the critical aspects of attacking civilian targets randomly for the purpose of advancing a specific cause, devoid of pecuniary or personal gain for the actor.

The Legal Context
The protection of the natural rights of life, liberty and property predate the constitution and the historical context provides a backdrop for Affirmative.

Magna Carta, 1215
39. No freeman shall be captured or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.
40. To no one will we sell, to no one will we deny or delay right or justice

It is widely recognized the Magna Carta, chapter 39 was the legal basis for the U.S. Constitution's "Due Process" clause and this view was confirmed by Supreme Court Justice Harlan, in his opinion in Poe v Ullman
Were due process merely a procedural safeguard, it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three. Compare, e.g., Selective Draft Law Cases, 245 U. S. 366; Butler v. Perry, 240 U. S. 328; Korematsu v. United States, 323 U. S. 214. Thus the guaranties of due process, though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country "become bulwarks also against arbitrary legislation." Hurtado v. California, 110 U. S. 516, at 110 U. S. 532.

However, it is not the particular enumeration of rights in the first eight Amendments which spells out the reach of Fourteenth Amendment due process, but rather, as was suggested in another context long before the adoption of that Amendment, those concepts which are considered to embrace those rights "which are . . . fundamental; which belong . . . to the citizens of all free governments,"


The Legal Issue
It is difficult at times to understand the stance of the Supreme Court with respect to this issue.  In the wake of the September 11 attacks on the World Trade Center, there has been substantial political opinion clouding the issue of due process from foreign nationals accused of terrorism.  Nevertheless, even when the court is clear in its opinions, it does not mean the decision is ethically correct.  The court has a history of denying rights to individuals based on race and nationality in the past.  The court must operate within the legal framework in existence at the time it renders its decisions and that legal framework evolves over time.  The issue of slavery is one clear example and there is no reason to think the issue of extending constitutional protections to non-citizens will not be deemed legal in the near or extended future.  The Affirmative, therefore, at least has precedence that as points of view change, laws will also change.  The Affirmative does well to remember it does not need to find its case justification in the status quo. Aff is indicting the status quo and claiming we need to change the mindset and the current legal landscape because, like the abolishment of dehumanizing condition of slavery, it is the ethical or just thing to do or most effective way of preventing overarching harms which extend to all citizens, even those not directly impacted by terrorist attacks.

Cole, David, 2010, "Are Foreign Nationals Entitle to the Same Rights as Citizens?"
Given this record, it is not surprising that many members of the general public presume that noncitizens do not deserve the same rights as citizens. II But the presumption is wrong in many more respects than it is right. While some distinctions between foreign nationals and citizens are normatively justified and consistent with constitutional and international law, most are not.  The significance of the citizen/noncitizen distinction is more often presumed than carefully examined. Upon examination, there is far less to the distinction than commonly thought. In particular, foreign nationals are generally entitled to the equal protection of the laws, to political freedoms of speech and association, and to due process requirements of fair procedure where their lives, liberty, or property are at stake.

...The Fifth and Fourteenth Amendment due process and equal protection guarantees extend to all "persons." The rights attaching to criminal trials, including the right to a public trial, a trial by jury, the assistance of a lawyer, and the right to confront adverse witnesses, all apply to "the accused." And both the First Amendment's protections of political and religious freedoms and the Fourth Amendment's protection of privacy and liberty apply to "the people."

Military Justice
The Department of Defense and Homeland Security in the U.S., have held that accused terrorists currently detained fall under the jurisdiction of military tribunals.  The principle distinctions which separates the jurisdiction of military courts from civil courts is the question of whether or not the accused is a member of adversarial force, that is, a member of a legitimate military force and whether or not the mililtary court is operating within the jurisdiction of a civilian court.  The Supreme Court established very precisely in the case Ex Parte Milligan, that citizens may not be tried by military tribunals within the jurisdiction of a civil court.  The case did not specifically address the trial of non-citizens but did delineate the jurisdictional limits of non-civilian courts:
It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that, in a time of war, the commander of an armed force (if, in his opinion, the exigencies of the country demand it, and of which he is to judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies and subject citizens, as well as soldiers to the rule of his will, and, in the exercise of his lawful authority, cannot be restrained except by his superior officer or the President of the United States.

If this position is sound to the extent claimed, then, when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper, without fixed or certain rules.

The statement of this proposition shows its importance, for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law established on such a basis destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power" — the attempt to do which by the King of Great Britain was deemed by our fathers such an offence that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure {125} together; antagonism is irreconcilable, and, in the conflict, one or the other must perish.


Guiora 2010 explains:
Detention—depriving an individual of his freedom—is lawful in the American criminal law paradigm, requiring probable cause pertaining to past acts. The initial arrest, provided exigent circumstances do not exist, requires an arrest warrant issued by a “neutral and detached magistrate” in response to a request submitted by law enforcement based on evidence or sourced information. In addition to the initial detention, the court may conclude that continued detention is warranted, predicated on a variety of factors including severity of the crime, danger posed by the suspect, and whether the individual is a possible flight risk. The presence of these additional factors allows the court to require additional detention. This detention model, with varying degrees of interpretation subject to country-specific criminal procedure codes, is largely representative in countries adhering to the rule of law and separation of powers between the executive and judiciary. Judicial review of the executive is essential to preserving liberty and due process. However, in the immediate aftermath of 9/11, the Bush Administration established an alternative paradigm for those detained in the so-called “Global War on Terrorism.” Rather than relying on the traditional model, the Administration created an alternative model that is fundamentally deficient with respect to due process. Devoid of probable cause standards, much less review by an independent judiciary, the Bush Administration implemented the unitary executive theory paradigm, a system devoid of probable cause standards that has been actively advocated by Professor John Yoo and David Addington amongst others.

The significance of the unitary executive theory in the due process discussion is profound: in essence, it significantly minimizes the role and power of the legislature and judiciary with respect to counterterrorism. The unitary executive theory raises profound questions regarding the application of established constitutional principles of separation of powers and checks and balances to counterterrorism. According to its proponents, the theory establishes a constitutional model whereby the executive assumes extraordinary powers at the absolute “expense” of the judiciary and legislative branches.

With respect to due process—the rights so carefully protected by the Fifth and Fourteenth Amendments—the Bush Administration’s approach was to create a paradigm that largely denied detainees their fundamental rights. Justice Stevens’ dissent in Rumsfeld v. Padilla addressed this directly:

Whether respondent is entitled to immediate release is a question that reasonable jurists may answer in different ways. There is, however, only one possible answer to the question whether he is entitled to a hearing on the justification for his detention. At stake in this case is nothing less than the essence of a free society. Even more important is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.

Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.

The need to develop standards in determining when and why an individual may be detained is critical to establishing a due process predicated paradigm. As Justice Stevens’ dissent makes clear, the Bush Administration’s detention policy, with respect to post-9/11 detainees, was devoid of minimal due process standards. While this was in accordance with the worldview articulated by senior officials, it fell short of meeting constitutional standards according to Justice Stevens. However—and the caveat is essential—the appropriate query is whether 9/11 presented a threat that justified denying basic due process rights.

Link to Policy Framework

Sources used:
March 2010, Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens?
Georgetown Law, Faculty Publications, 25 T. Jefferson L. Rev. 367-388 (2003)
David Cole, Professor of Law, Georgetown University Law Center
DUE PROCESS AND COUNTERTERRORISM, Amos N. Guiora, Professor of Law, S.J. Quinney College of Law, University of Utah; author of Freedom from Religion: Rights and National Security (2009).
Bradley J. Wyatt, Even Aliens are Entitled to Due Process: Extending Mathews v. Eldridge Balancing to Board of Immigration Appeals Procedural Reform, 12 Wm. & Mary Bill of Rts. J. 605 (2004)

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