Term Paper on "U.S. Federal Government's Noncompliance With Habeas Corpus Guarantees of the Constitution During National Emergencies"

Term Paper 7 pages (2083 words) Sources: 1+

[EXCERPT] . . . .

Government Constitutional Non-Compliance

During times of war the United States government has been guilty of Constitutional non-compliance however, at no time has worse non-compliance on the part of the U.S. Government been documented.

The violation of the Constitution of the United States which is formally termed as "non-compliance" has been seen throughout the history of the United States specifically, it has occurred during times of war during civil disturbances with the use of extrajudicial force used to supercede the ordinary process of law. One such instance occurred during the Civil War. However, the violations, which have occurred during the "War on Terrorism," are some of the most blatant violations of Constitutional ideals and principles ever witnessed. Indeed, the U.S. Government has violated other standards such as the Geneva Conventions.

Preamble to the United States Constitution:

The Preamble to the United States Constitution states as follows:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Definitive of the Language in the Preamble:

The first approach used will be the definition of meaning of the words found in the Preamble. The word justice is defined by Webster's Dictionary as "fairness, righteousness, administration of law, judge" so it may be inferred that a "more perfect union" was formed to establish fair administration of law. Tranquility is defined by Webster's Dictionary as meaning, "serene, relaxed." Therefore domestic, meaning home will be serene and relaxed in this "more perfect union."

Obviously then, the Preamble is stating that in this "more perfect union" that the atmosphere is serene, relaxed and ruled with fair law. Further the Preamble states that each citizen is defended from harm, everyone's welfare is common or equally important, which yields blessings of liberty and posterity, meaning each generation exceeds the accomplishments of the one before in terms of productivity. All of this equals something that has not been evidenced by the government of the U.S. In many years, indeed if ever.

Historical Incidents of Non-Compliance:

Thomas Jefferson and James Madison drew up the Virginia and Kentucky resolutions of 1798 and 1799 in opposition to the Alien and Sedition Acts, which they considered to be a violation of civil liberties. These Acts allowed individual states to oppose by disobedience acts of the federal government that the states deemed to be unconstitutional.

The Rise and Fall of the Confederate Government was published by Jefferson Davis in the year 1881. Ex-President of the Confederate his unique view of the Southern Confederate nation and the Civil War has been called "Confederate apologia" by some but is a history of the South during the Civil War. Davis wrote that the:

the armies of the United States were literally authorized to invade the Confederate States [and] to seize all property as plunder.... Our posterity, reading that history, will blush that such facts are on record."

The first Confiscation Act was considerably more reasonable than that of the July 1862, Second Confiscation Act. There were serious issues, both constitutionally and ethically with this Act which was in actuality a "Sequestrian Act" and was in retaliation against the North. The act demanded that citizens become government informants and upon failure to do so the citizens of the Southern states could be punished by fees, fines and imprisonment. There were no measures of guidance restricting the vested power of gaining information.

The only Southern senator to remain on duty in Washington at the time his state of Tennessee his state deserting to the Confederacy was Andrew Johnson. Johnson, outspoken and an Unionist was immediately declared to be an alien enemy and writs of garnishment to seize his property were enacted for Tennessee sequestration, Landon C. Haynes.

During the early part of the Civil War the President, Abraham Lincoln effectively suspended the habeas corpus, which is one of the basic civil rights protected by the U.S. Constitution. The suspension granted the right to authorities to hold those suspected of criminal activity without the filing of formal charges. Lincoln purportedly did this for reasons of national security.

Sixty and some odd years ago after the bombing of Pearl Harbor authority was given for the founding up of Americans that were of Japanese heritage. These individuals were gathered up and locked up in internment camps but no formal charges were ever filed against them. This was purportedly done for reasons of national security.

Although it is understandable for some restrictions during war time in order to keep citizens safe and the country secure it is evident that since September 1, 2001, that the non-compliance to the Constitution which is evidenced by the implementation of the Homeland Security Act and the Patriot Act that the all inclusive powers of the government in spying on citizens is too broad of a scope of powers to be vested in a government of a democracy.

In an interview with Alan Dershowitz, a professor of law at Harvard University in October 2001 and Ms. Wendy Kaminer, who is a member of the ACLU but was speaking personally and not for the ACLU. Neal Conan of Washington conducted the interview and began by asking Dershowitz about the debated "National ID" card. Dershowitz replied that in assessment of his formation of opinion in relation to the cards that he realized that the initial abrasion he had towards the ID card was the fact that the card was first used in:

Authoritarian countries like South Africa during apartheid. But then when I started thinking about ID cards in America, it occurred to me that the reasons for not having them don't really apply here. We are a country in which everybody carries ID cards of one form or another.

Dershowitz goes on to say that:

The debate ought not to be about ID cards, which would be limited to name, identification, maybe a print that's matched to a chip, but... what's in the database that corresponds with the ID card -- that's a great debate"

Obviously, this is a levelheaded and logical viewpoint. Dershowitz says further that:

we ought to have -- or when an ID card should be required to be shown, not on the street, not by any policeman."

Again, Dershowitz is using common sense and cognitive processes of logic. Dershowitz went on to say that:

But if we already have to show an ID card, for example, when we enter the country or when we go to an airport or when we enter into a building or a government building, it should be a valid ID, not the kind that the kids at MIT were able to make easily when my children were growing up and were 20 years old and wanted to have a beer.."

So I think that we should not fear the government being able to secure the fact that we are the person we say we are. There is no right, and there should be no right in America in the year 2001, to anonymity. That went out with Thoreau. It went out with the Internal Revenue Service. It went out long, long time ago. it's a very abstract, unaffordable right. There is a right to privacy, and we ought to battle for that right very strongly, and that has to do with what's in the database and when we can be asked to identify ourselves."

Commenting to this, the other interviewee, Wendy Kaminer. Kaminer responded with a question by asking Dershowitz/, how has it been shown that the cards will make us safer?" 'The terrorists weren't hiding" but "the government wasn't looking for them, its better intelligence that we need." (paraphrased).

It cannot be denied, if one is honest in giving an answer that, throughout U.S. history never has there existed a time in which citizens felt so watched as one does at this point in time. Indeed, the mere checking out of certain books at the library in conjunction with records released by librarians, whom do so under compulsion to be labeled disobedient in their employment otherwise, will get you, watched very closely.

The new allowances for Internet snooping aren't as broad as was hoped by the U.S. Government Administration when recently a Supreme Court Justice, struck down part of the Patriot Act that was related to government snooping on the Internet. In a report the following was stated:

In a 122-page ruling, Judge Marrero, of the Southern District of New York, said the FBI's use of NSLs without judicial review "violates the Fourth Amendment," and that the "nondisclosure provision" of the law "violates the First Amendment. The judge ordered the government to stop issuing NSLs or applying the nondisclosure provision, but delayed enforcing the order pending appeal by the government in the next 90 day."

Present constitutional laws concerning wiretapping require a court order from specific judges (except surveillance… READ MORE

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