Wednesday, August 15, 2012

LD 2012 Sep/Oct Accused Terrorist Rights


Resolved: The United States ought to extend to non-citizens accused of terrorism the same constitutional due process protections it grants to citizens.


Introduction

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.


Definitions


Terrorist
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.

Non-Citizen
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.”
(src: http://www1.umn.edu/humanrts/edumat/studyguides/noncitizens.html)

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


40 comments:

  1. Might I suggest that a PDF download would be a sweet option for your site?

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    1. Thanks for the suggestion. Yes I am investigating what can be done and how to make such a service available considering most content is copyrighted and only available through pay-sites. I think cutting cards is a better option which should be legal under fair-use provisions of U.S. law. But of course that means a lot of extra work to review everything in detail and try to crank out cards. By supplying links to the original sources, I avoid a few thousand hours of extra work and its not that I'm lazy but...I do occasionally need to sleep.

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  2. i think you should put it down , many students are printing it and using it as there own work !

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  3. *THEIR!!!!!!!!!!!!!!!!!!!

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  4. I am gald you commented but I don't know what you mean, "put it down". How do you think I can make it better?

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  5. Nicely written! And I suspect the previous anon comment wants you to take down the site, which would be a horrible thing to do.

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  6. For what its worth, I did put a copyright notice on my "About" page. Nevertheless, real debate happens after the evidence is read. It is a skill gained by learning as much as possible about a topic and debating and refuting until the final timer hand signal or beep. One does not copy that unique ability from a web page. Thanks. Comments (and criticisms) are always welcome.

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  7. i was just worried because 2 of my students so far have been coping from the internet , amazing writing by the way :)

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  8. Thank you much, I am a first time ld debater and extremely nervous for preparing my first case because I am the only ld debater in my school. I want to say that I am not just copying the things posted on this site but using them as (hopefully) an inspiration for my case. Again, thank you very much, this has been and will be a great help to me.

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    1. Comments like yours, inspire me. I am hoping to be a start, not the end of your research. Best of luck in LD.

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    2. Me too...

      My debate team is only two years old and I am the first LDer. Thanks for the help, it is definitely pointing me in the right direction. Now I can try to write my first case.

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    3. I am hopeful the information on this site will continue to help you and your team. Good luck!

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  9. Thanks for this!

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  10. I appreciate your site. I've been debating for a couple years now, but my downfall is always starting cases and having a good over view of the topic. Many times I start too small or too big, and your information and insight really helps focus on and organize what exactly I want to say. The links you post give me a good start, and from there I can really get excited about the topic so I can research it and throw myself into it. Thank you.

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  11. Question on a definition for non-citizen: is it restrictive to the negative side to say: “any individual who is not a national of a State in which he or she is present.” because that would mean the non-citizens would have to be inside the usa. otherwise, thank you much for the definitions and the rest of the site. you work hard and i am very grateful

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    1. I think that definition would be restrictive but if it goes unchallenged one only needs to wonder if the judge will accept or reject it. When I judge, if that definition were given and it was unchallenged, that would be the standard I use for evaluating the round, but not all judges are like me.

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  12. Thank you for putting this up. I've just started LDing and my first tournament is coming up the 15th. Your site has proved very helpful to help me research this topic. I have a question though, on which I got confused: So due process is not guaranteed to non-citizens accused of terrorism?

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    1. If the noncitizen is outside of the U.S. due process is not guaranteed. Also if the executive branch (military, president, attorney general, etc) can prove there is a major security risk to allowing due process for a particular detainee held in the U.S., one or all of the due process rights may be suspended. For example, the right to face one's accusers; if that accuser is an informant or CIA under-cover agent, the government will not want to expose the accuser.

      Enemy combatants held in U.S. or non-US areas are subject to Geneva Convention rights as prisoners of war. Technically these are not Constitutional but they provide a limited form of due process. Persons accused or terrorsim are not classified as combatants, rather illegal combatants which denies them Geneva protections.

      Remember, in LD this case is about what ought to be done not necessarily about what is done.

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  13. thank you very much for this article!! im a first time debater and was a little confused at first, this really cleared things up though. thanks again:)

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  14. Thanks to all for the encouragment and to the first time debaters/first time LDers, good luck. For some, the first tournament of the year is right around the corner.

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  15. by law you have to be a member of the U.S. to be accused of terrorism and have a trial

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    1. Hmmm. Here is a list of 16 foreign nationals currently serving prison sentences for terrorism related activities. They are not 'members' of the U.S. but they were accused and tried. This does not include those accused, tried and acquitted.

      http://en.wikipedia.org/wiki/United_States_Penitentiary,_Florence_ADX#Foreign_Terrorists

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  16. Could you further more explain when you said major security risk in your previous comment ? Thank you

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    1. The principle upheld by the courts is, if the process of granting due process rights (right to face accusers, right to a speedy trial, habeus corpus, etc) exposes the nation to security risks which may cause grave harm to ongoing military operations or personnel or the citizens and interests of the U.S. the court may allow those rights to be denied, until the risk no longer exists. This is done in the interests of national safety.

      There are many ways the government may determine a security risk exists. Commonly, the evidence which lead to an accused's detention may have been supplied by an undercover operative or informant and exposing the source of the evidence could "blow the cover" of the informants and thus risk their lives or the integrity of the entire operation. Another risk is exposed, if the detainee is withholding information that is vital to preventing a terrorist plot from going forward. The court may agree to suspend the detainee's due process until the information can be extracted. Third, it may be that exposing the identity of the detainee could subject the U.S. to risk of attack or jeopardize an ongoing security operation. There are other ways the safety of the u.S can be jeopardized. These are only a few. The debaters must determine if these are legitimate or not. Pro may argue, these risks do not outweigh the moral duty to provide detainee's their rights. Con would justify denial of rights based on utilitarian principles.

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  17. I know I'm late. By any chance when I'm done writing my case do you think you can look it over ? Cause I need feedback. And thanks this helped a lot but one question could the aff argue saying they can get due process after the

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    1. I am not inclined to start reviewing cases because I have limited time while trying to manage my own team. But, Everydaydebate does have an email address. See the About tab, at the top of this page and if there is time...no promises.

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  18. Operation. Sorry would Notmlet me write it all in one comment.

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  19. So, how do you know which definition to use during a debate round?

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    1. Excellent question. The choice of definitions should be the ones which best suit your case. This means they will not contradict anything in your case, even under close scrutiny by the opponent. The more experience one has debating, the easier it gets to anticipate possible problems with definitions. Also, if you are challenged in rounds, you may want to find a better definition before the next tournament.

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  20. A sophmore entering my first LD tournament this Saturday. Using this a guideline, but still pretty worried. Wish me luck :D

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    1. Good luck. Remember to always let the judge know why your claims are importatant and no matter which side you are debating, show confidence as a well studied academic.

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  21. Good definition of non citizen: Any person not naturally born in the continental U.S., Alaska and Hawaii, or an immigrant who has not completed the U.S. naturalization and taken the Oath of Citizenship. Nothing vague, nothing anyone can spin.

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    1. I don't know what source you used, but based on past debate cases (such as the "birth-right citizenship" case) I think your definition is correct for the U.S. specifically. Thanks.

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  22. oh my gosh!!!!! im so excited for next weekends tournament!!! im doing policy this weekend but next weekend im doing LD and i have a very strong neg. and aff. case!!!! I have heard that LD is the best kind of debate. i've never done public forum but every debater at my school says that it is ridiculous and for people that cant do any other type of debate... i dont know though.

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  23. ^ Mariah again. the one that says M. sorry

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    1. Its unusual for a policy debater to claim LD is the best. Personally I love both forms of debate. I learned policy first, PF second, and LD third and had the pleasure of hearing some truly amazing LD debate. Best of luck Mariah.

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