The Erosion of the Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Sixth Amendment to the U.S. Constitution

When President Obama signed into law the Defense Authorization Bill earlier this month, the legislation that funds the military, it also made legal the indefinite detention – without trial – of American citizens suspected of terrorist activity.  This special power contradicts the Sixth Amendment (see above) and thus erodes one of the liberties provided by the Bill of Rights.  Rather than being a sudden change in policy, this instead codifies a practice that has been carried out for the past ten years and is now legally extended to include American citizens as well as foreign nationals.

Consider the text of the 6th amendment – it states that in all criminal prosecutions, the accused have the right to trial by an impartial jury in the locality the crime was committed.  Since Guantanamo Bay was used as a detention centre in 2002, 779 people have been taken there.  Of those, 6 have been convicted by military commission, 1 has been prosecuted in a federal court, and 38 were ruled to having been held unlawfully (all numbers from Human Rights First Factsheet ). Five times as many suspects have been ruled as having been held illegally at Guantanamo Bay than have been convicted of a crime and a further 600 of the detainees have been released without ever facing a charge against them.  Consider this:

  • Percentage of Guantanamo detainees convicted of a crime: 0.9% (7 out of 779)
  • Percentage of last 8 Governors of Illinois to end up in prison: 50% (4 out of 8)
Thus, statistically someone is more likely to end up as a convicted felon if they were in residence at the Governor’s Mansion in Springfield, Il, than if they were a detainee at Guantanamo Bay.

A couple of weeks ago, The Daily Show had a section about this Defense Authorisation Bill, pointing out how “un-American” this law would be.  While that piece itself was on point, it did remind me of how the show – and the media in general –  handled the assassination of Osama Bin Laden earlier in the year.  The legality of the mission was not questioned, only a celebration at the death of a man who had become a symbol of terrorism, rather than a direct and present threat to the United States himself.  Let me just say, the death of an evil man who plotted atrocities in the United States and all over the world is not something I shed any tears over.  However, the manner in which the execution was carried out is of great concern – he was unarmed and had not been convicted of any crime.  There was never any attempt to capture Bin Laden alive and bring him to justice in a court of law – something that could have led to his being put to death through legal means (though I still oppose the death penalty, as discussed here, at least it would have followed due process).  Osama Bin Laden was on the FBI’s most wanted list since the bombings of the US Embassies in Tanzania and Kenya in 1998 – with the reward of $25 million offered for his apprehension or conviction.  In the end, it was never a case of  being wanted “Dead or Alive” – it was only in the former state the US Government wanted him.

While the world is undoubtably a better place without Bin Laden in it, the erosion of the principles the United States is perturbing.  Just five months after the death of the leader of Al-Qaeda, a targeted drone strike in Yemen killed the American born Anwar al-Awlaki.  Dubbed the “Bin Laden of the Internet” by the press, there was no sustainable evidence presented against al-Awlaki, merely conjecture of his involvement in the planning of terrorist plots – including a failed attempt to blow up an airliner on Christmas Day, 2009.

While I am confident in both cases the US Intelligence services had credible, irrefutable evidence of the culpability of both Bin Laden and al-Awlaki, this was never cited in a court of law nor subjected to cross-examination.  The Founding Fathers deliberately designed the framework of this country to ensure a balance of power – if the Executive Branch circumvents the authority of the Judicial Branch, then it leaves the nation susceptible to a tyrannical leader having complete control.  While it is hard to argue for the rights of people who advocate terrorism, the principles upon which America was founded are deontological not teleological.  The right to trial by jury is not relinquished for those we assume are guilty.  Being held without charge is not acceptable, if there is enough evidence for someone to be detained, that should be presented in a court of law.  The last thing anyone wants to see is another attack against the United States, or anywhere else (remember the bombings by Al Qaeda in London, Madrid, Istanbul, Bali,  Casablanca and several other places took place after 9/11), but the prevention of terrorism cannot come at the cost of the basic rights laid out in the constitution.  Though it could be argued that Bin Laden was not a US citizen and therefore not protected by its Bill of Rights,  al-Awlaki was – and so might be countless numbers of people who can be detained without charge under the provisions of the Defense Authorisation Bill.  It may be cliché, but if we cannot uphold out principles and liberties, then the terrorists really do win.

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