Resolved: The United States ought to extend to non-citizens accused of terrorism the same constitutional due process protections it grants to citizens.
This is an interesting topic but a little restrictive because it will deal with constitutional protections rather than universal rights. In my estimation, debaters may be inclined to restrict the analysis to a legal realm. Extension of constitutional rights to non-citizens has been visited in several Supreme Court Rulings and generally, the Court does not seem to favor a general extension of constitutional rights to non-citizens as we have already learned when researching the Targeted Killing topic from last season. But, what legal rights are afforded non-citizens in U.S. territory? Beware -
This topic does not limit the discussion to individuals who are in U.S. custody, even though the implication may be that is the case. Think: Camp X-Ray at Guantanamo Bay, Cuba. There are many non-citizens, currently "at large" who are accused of terrorism in various locations around the world. This lack of specificity, greatly opens the Negative ground and complicates the debate for the Affirmative. The beauty of LD debate, is Affirmative need not be bound by current SCOTUS rulings and constitutional law, since there is the word "ought" in the resolution. Clearly, then, affirmative will be arguing, even if the current U.S. law and the Supreme Court does not extend rights to non-citizens it ought to be done because that is the moral or just thing to do.
Before we can debate the rights of persons accused of being terrorists, we need to acquire a working definition of terrorist and terrorism. This is vital since one man's terrorist may be considered another man's freedom-fighter. Research of the term will show there are dozens and dozens of definition which vary by ideology and national identity and there really is no "one size fits all" definition that is universally accepted. I suppose we can restrict the definition to U.S. centric interpretations of "what is a terrorist". I think no one would be opposed if we say a terrorist is one engages in acts of terrorism, and so we can turn to the United States Code for suitable definitions of terrorism:
(1)the term “international terrorism” means terrorism involving citizens or the territory of more than 1 country;
(2)the term “terrorism” means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents;
(3)the term “terrorist group” means any group practicing, or which has significant subgroups which practice, international terrorism;(src: http://www.law.cornell.edu/uscode/text/22/2656f)
So if acceptable, we claim a terrorist is one who engages in premeditated, politically motivated violence against noncombatant targets. Nevertheless, this definition may be considered overly restrictive since by definition, there would be no such thing as a terrorist attack against a military unit, in Afghanistan for example since such attacks are directed to combatants. However, an attack against an hotel which is not ordinarily recognized as a military installation may qualify if the attack was politically motivated. For this reason, the Department of Defense has a somewhat different definition of terrorism:
"(DOD) The unlawful use of violence or threat of violence to instill fear and coerce governments or societies. Terrorism is often motivated by religious, political, or other ideological beliefs and committed in the pursuit of goals that are usually political."(src: http://www.dtic.mil/doctrine/dod_dictionary/data/t/7591.html also seen here http://www.bits.de/NRANEU/others/jp-doctrine/JP3_07.2(10).pdf)
I think a key to the DoD definition is inclusion of the word "unlawful" which differentiates the meaning from any ordinary war which pretty much also has the same definition, but conventional wars are supposed to be considered lawful under just war theory.
For a working definition of non-citizen, I turn to the University of Minnesota, Human Rights Library, "Study Guide: The Rights o Non-Citizens" :
Who is a Non-Citizen?
According to Merriam Webster’s Collegiate Dictionary, “a citizen is a member of a state to whom he or she owes allegiance and is entitled to its protection.” Hence, from this definition, it is implicit that a non-citizen is someone who is not a member of a state nor owes allegiance to the state he or she currently resides.
A better definition is provided by Article 1 of the UN Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live (1985). A non-citizen is defined as
“any individual who is not a national of a State in which he or she is present.”
Constitutional Due Process
An excerpt from the Fifth Amendment of the U.S. Constitution states:
nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
An excerpt from the Fourteenth Amendment of the U.S. Constitution states:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
We can see in the wording of the amendments, particularly the fourteenth, that law is a sort of double-edged sword. On the one side, it possesses the power to deprive one of life, liberty and property but because of the requirement of "due process" law provides, on the other side, the power to protect the individual against that aspect of the law which deprives. In other words, due process, is a check against the power of the law to deprive one of their natural rights, of lie, liberty, property and as some philosophers would include, the pursuit of happiness.
As such, due process is supposed to provide judicial review of cases in order to guarantee fairness under the law. It is presumed the judges are not influenced by political or ideological motivations.
Part 2 An In Class Discussion - click here