Tuesday, September 4, 2012

LD 2012 Due Process Neg - part 1

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

Generally speaking the 2012 Sep/Oct resolution requiring the extension of due process rights to noncitizens accused of terrorism, tends to be a debate centered around legal principles enumerated in the constitution.  Given that, I want to review some of the key legal principles in this post which provide potential background information for the Negative advocacy.  Nevertheless, the legal principles in many cases seem fairly well established:  Noncitizens accused of terrorism and in custody in the U.S. or territory controlled by the U.S. are entitled to constitutional due process protections.  Period.  Any attempt to argue contrary will be fraught with difficulty.  Nevertheless, as you may infer, such protections do not extend to noncitizens in U.S. custody outside of the U.S. and as you see if you do your research, those protections do not extend to citizens who are deemed enemy combatants and detained outside of the United States.

Regardless, there may still be ground to stand upon, even for noncitizens detained within the U.S.  How?  The resolution is quite specific: "The United States ought to extend to non-citizens accused of terrorism the same constitutional due process protections it grants to citizens".  It does not allow exceptions, so the Negative can assume one or more of these alternative positions:

1. When must due process protections be granted?
Perhaps there is an overarching security need which requires a suspension of due process until the risk of danger has subsided.  There is empirical evidence of this kind of temporary suspension in recent history of the United States.

2. What if even one person can legitimately be denied due process, does Neg win?
This explores the possibility that certain individuals are such dangerous risk to national security interests it would never be prudent to extend due process protection to them.  Alternatively, we can more deeply explore the exceptions that exist in the status quo in cases of extrajudicial targeted killing, or imprisonment in foreign detention centers.

3. What is due process?
If the Affirmative claims due process requires judicial review, then if there is a basis for alternative forms of due process Neg could potentially overcome the Affirmative view.

4. Is terrorism a criminal act or act of war?
The procedures for due process fall under different principles and rules from criminal proceedings when engaged in a just war.

Leveling the Ground
Be aware, when you stand up to give your Neg case, you will need to present your arguments not only under the cloud of the Affirmative case but within the context of current events of which the judge will, no doubt, be informed.  The judge will very likely already be aware of Abu Ghraib, Camp X-ray at Guantanamo, and already have an opinion of the U.S. justifications for its conduct of the War on Terror and related adventures, including the wars in Iraq, Afghanistan and the border regions of Pakistan. The judge will already be aware of drone attacks and targeted killing and it is certain the judge, long prior to this debate has made some evaluations of the necessities and impacts of U.S. past and current policies. Given these realities, I believe Neg will have her work cut out for her.  If the idea is to present a traditional case and directly take on the affirmative, it will be necessary to nullify the predisposition of the judge.

Unless the Neg case will deal with the present politics, I think it important to conceptualize the premises of the case as much as possible.  Neg would do well to separate themselves as much as possible from any recollection of the past justifications for the current War on Terror and focus on the principles which justify Neg's case.

Threats on a Global-scale
One very clear framework for justifying extraordinary actions in dealing with terrorism and its suspects, is to establish a framework which characterizes terrorism as an extraordinary threat to populations and their way of life.  Doing so, illustrates the equivalence of certain acts of terrorism and genocide; an attempt to destroy innocent people on the basis of some ethnic, religious or cultural identity.

Saul 2006:
Even more tenuous than the argument for killing settlers is al-Qaida's view that Americans, by being Americans, are responsible for the acts of the United States, or for sustaining its power. Such a view is politically punitive, not to mention genocidal; it threatens a whole people, regardless of the individual harmfulness of its members. Likewise, the targeting of UN or humanitarian personnel, for supposed complicity in nourishing the U.S. occupation of Iraq, embodies a world-view which ultimately exposes every individual to terrorist harm whether on account of their occupation, political beliefs, religious affiliation, nationality, or otherwise.

President George Bush stated "On September the 11th, enemies of freedom committed an act of war against our country." and the state of war was reiterated by Obama in 2008 when he said, "Our nation is at war, against a far-reaching network of violence and hatred."  These statements were several of many very important declarations which framed the U.S. response as justifiable self-defense.  Now, in reality, perhaps we can debate profusely whether the attacks of 9/11 and any of the evidences released by the U.S. administration were legitimate grounds for justification of subsequent conduct.  The specific case of Al Qaida and 9/11 serve to illustrate some of the general principles which can be applied to the Neg case.  In general, a government has an obligation to protect itself and its people from attack.  It is the principle of self-defense expanded to a global-scale and when a government perceives a threat which amounts to a kind of genocide against its people, what actions may that government take which are legally, philosophically and morally justifiable?  Additionally, when one considers the so-called war a "new kind of war" and indeed, such a characterization may be allowed. Never before has a protracted war across multiple nations involving innocent civilians, illegal combatants, and non-aligned belligerents ever been fought.  The rules have simply not been written for such a war.

Terrorism Definition
The rules of engagement and the processes for dealing with terrorist and those accused of terrorism or aiding terrorists, vary significantly if an act of terrorism is considered a crime or an act of war.  This, once again falls back on the definition of the word.  Prior to 2001, the U.N. had no working definition for terrorism and even after is reluctant to give it specific meaning fully aware that in some cases, accused terrorists may be considered freedom fighters depending on who is assigning the meaning.  The U.N. Article 51 states "Nothing in the present Charter shall impair the inherent right of individual or collective self‐defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security" and most legal scholars interpret this to mean, the inherent right to self-defense is a sort of natural right for states that does not require a prior approval from the Security Council.  But the terminology, 'armed attack' proved problematic in the age of terrorism.  Not only does it force a require terrorists to be an armed entity of a state but it implies that preemptive actions to prevent such attacks are restricted.  The interpretation of 'armed attack' as a state sponsored action, eliminates terrorism as many interpret terrorism as strictly a criminal activity to be managed by established criminal law.  The International Court of Justice upheld a narrow interpretation in the case of Nicaragua v. United States but following the events of 9/11 most nations universally agree that the terrorist attacks in New York and Pentagon constitute an 'armed attack' triggering the right to self-defense and clarified via Resolution 1373, "the inherent right of individual or collective self‐defence in accordance with the Charter which is contained in Article 51 specifically with respect to the terrorist attack." and reaffirmed Resolution 1368 which, "authorized states to take steps to prevent the commission of terrorist acts."  These resolutions, clarified and codified into International Law the right of nations to defend themselves both after-the-fact and preemptively from terrorist attacks.  Amazingly, the U.N. has failed to supply a definition of terrorism and so the question of whether terrorism is a criminal offense or military action remains an open question yet to be fully tested in the arena of International Law.

I gave the prior, very brief, overview of the issues of definition so as to put some context around what could really be the stasis point of the current LD resolution.  The Constitutional protections of due process are aimed to preventing abuses by the government when dealing with criminal prosecution, whereas, other rights are granted to the government and in particular, the executive branch when dealing with war, and extraordinary threats to the very foundations of the state.  So we see in these two points of view, foundational principles for the Aff and Neg cases.

Executive Discretion
The constitution gives Congress the power to provide the "common defence and general Welfare of the United States...To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;" (Art I, Sec. 8).

In times of extreme emergency there sometimes arises the need to take extraordinary measures to protect the state.  Such power was challenged in 1909 as described:

NYCBar 2004:
The Governor of Colorado detained a union leader for two and one-half months during a “state of insurrection” created by labor strife, until “fears of the insurrection were at an end.” Moyer v. Peabody, 212 U.S. 78, 84-85 (1909). After the unionist had been released, he brought suit for damages, claiming the Governor’s actions had violated his due process rights. The Court, based on findings that the Governor had acted in good faith, though “without sufficient reason,” found no constitutional violation and affirmed dismissal of the damage suit. Justice Holmes’ language for the majority was expansive:
When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process. . . . This was admitted with regard to killing men in the actual clash of arms; and we think it obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm.

Usually in cases of national emergency or in the immediacy of the conduct of war, the courts tend to defer to the executive and legislative branches rather than interfere in matters which may threaten national security.

NYCBar 2004:
In Hirabayashi [v. United States], while acknowledging that distinctions based on national origins are “odious”, the Court nevertheless went on to note that the country was in the midst of a national emergency, and that the political branches had the authority and obligation to take whatever measures they thought necessary to protect against feared invasion or sabotage:
Since the Constitution commits to the Executive and to the Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it. Where, as they did here, the conditions call for the exercise of judgment and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of warmaking, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.
This substantial deferral to the judgment of the executive branch and Congress was based on a broad reading of the war powers, referred to as “the power to wage war successfully.”

Types of Due Process
The assumption made on the Affirmative side of the debate is unless constitutional due process protections are extended to noncitizens under purview of an impartial judiciary, there is is no due process.  But in fact, even the law recognizes that "due process" can be extended outside of the purview of the judiciary and by implication apart from the traditional constitutional protections.  These forms of due process may be upheld by constitutional powers granted to the legislative or executive but do not fall under the specific provisions of the fourteenth amendment.

Hagar v Reclamation Dist. (1884):
"Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law".

Thus, as ruled in the supreme Court case of Ballard v Hunter (1907): "Due process of law has never been precisely defined; while its fundamental requirement is opportunity for hearing and defense, the procedure may be adapted to the case, and proceedings in court are not always essential."

Clearly such implementations of due process are extended in military tribunals and more recently, the executive has justified targeted killing based on executive due process.

Eric Holder 2012:
"The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances...."

"The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history.   Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments – all of which depend on expertise and immediate access to information that only the Executive Branch may possess in real time.   The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen."

Despite numerous objections by pundits and editorial opinions, Holder's assertion, "a careful and thorough executive branch review of the facts in a case amounts to 'due process'" is in fact backed up by Court rulings.

Enemy Combatants
Ex Parte Quirin:
"By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between [317 U.S. 1, 31]   those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

This ruling was important because it provides a definition of types of enemy combatants and declares they are subject to trial by military tribunals, rendering them outside purview of the criminal justice system.  The meaning was later expanded after the attacks of September 11.  In 2004, as a result of the Hamdi v U.S. supreme Court ruling, Secretary of Defense, Wolfowitz convened the Combat Status Review Tribunals to review the status of Guantanamo Bay detainees as "enemy combatants" and served "to meet due process standards" cited by Chief Justice O'Connor in the Hamdi decision.

The definition of enemy combatant was modified prior to the Military Review Tribunals to include "any person who has committed belligerent act or has directly supported hostilities in aid of enemy combat forces"

After several cases and challenges, Congress passed the Military Commissions Act of 2006, barring access to federal court for noncitizen detainees. Again, after further challenges, it is, for now, determined that noncitizen detainees in Guantanamo do have right to habeus corpus but detainees in other jurisdictions do not based mainly on the fact that Guantanamo is essentially wholly under U.S. control and so under the Jurisdiction of the US Court system whereas, prisons in other countries are not..

Link to Neg part 2

Sources used:

The Association of the Bar of the City of New York
Committee on Federal Courts
February 6, 2004
(revised March 18, 2004)

The War on Terrorism: its Moral Justification and Limits
Peter Simpson

Foriegn Policy in Focus
Two Justifications for Terrorism: A Moral Legal Response
By Ben Saul. Edited by John Gershman, January 9, 2006

European Journal of International Law
The Use of Force against Terrorists
Christian J. Tams, 2009

RGSL Research Papers, NO. 4
Pre-emptive Self-Defense Against States Harbouring Terrorists
Megi Medzmariashvili, 2011

The United States Department of Justice
Attorney General Eric Holder Speaks at Northwestern University School of Law
Chicago ~ Monday, March 5, 2012

U.S. Supreme Court
EX PARTE QUIRIN, 317 U.S. 1 (1942)

Sullivan, Barry, & Canty, Megan, The Executive’s Authority over Enemy Combatants: Due Process and Its Limits, 2011 CRIM. L. &

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