Term Paper on "Korematsu Rasul Al Odah and Hamdi Cases"

Term Paper 6 pages (2073 words) Sources: 3 Style: APA

[EXCERPT] . . . .

Korematsu, Rasul, Al Odah, And Hamdi Terrorist and War Cases

Since the September 11 terrorist attacks in 2001, the Constitution of the United States has come under considerable scrutiny both by citizens and by the world in general. Issues relating to detaining persons suspected of terrorist activity is a particularly contentious issue. Many have held the opinion that the Government has overstepped its bounds by holding detainees without providing them with counsel or the opportunity to defend themselves. Supreme Court Cases are often cited as evidence of the Government's unconstitutional practices, as well as violations of international agreements such as the Geneva Convention.

There are several Supreme Court Cases that pertain to the issue of detainees. The case of Korematsu provides evidence that the issue is not a recent one.

During World War II, this case is representative of the Japanese conflict with the United States. American citizens of Japanese descent were excluded from areas that were considered critical in terms of national defense and possible espionage. The military was given the right to exclude citizens under the Presidential Executive Order 9066. Korematsu, however, remained in San Leandro, California, which was one such restricted area and therefore violated the U.S. Army's Civilian Exclusion Order No. 34. The central question addressed by the Supreme Court at the time was whether the President was within his power at wartime, to deny these rights to American citizens. The decision was upheld by the Court in a six-to-three vote. The Court argued that, while acknowledging the constitutionally suspect nature of such legislation, the country was in peril and such peril outweighed the rights of individuals such as Korematsu. A further argument was that this was not done in prejudice against Korematsu's race, but rather in response to a possible threat.

While it can be acknowledged that the problems of the time dictated the decision, one can also see a fundamental hypocrisy in the statements about race. Korematsu was originally Japanese, and perceived as a threat based solely upon his race as originally Japanese. Despite the fact that he was an American citizen, he was nonetheless treated as a possible spy for Japanese citizens. What is most interesting about this case is that it was revisited on February 19, 1976, when President Gerald Ford acknowledged the unconstitutional nature of Order 9066 and issued Presidential Proclamation 4417. The President openly declared Executive Order 9066 as a "national mistake" and that it should "never be repeated again." To seal this promise, the Commission on Wartime Relocation and Internment of Civilians was established to review Executive Order 9066. In 1983, it was unanimously found that the case of Korematsu, along with other similar cases, were not the result of wartime necessity, but rather of prejudice, hysteria resulting from the war, and a lack of strong leadership. When later cases are examined, it is interesting that many of the same unconstitutional practices are involved when detaining citizens. This is particularly true of cases after the 9/11 attacks. This despite that fact that the Korematsu case was to be a constant reminder of the necessity not to let war-time emotion override the constitution and the rights of citizens to due process. The violation of this right can be demonstrated by the case of Rasul vs. The United States, although it does not pertain to American citizens.

In this case, four citizens from Britain and Australia were brought to the American military base in Guantanamo Bay, Cuba during the War on Terror. The men were denied access to attorneys and were held indefinitely. In response, their families file suit to declare the action unconstitutional. The government's response was that the federal courts could not hear the case, as prisoners were not American citizens and were held in a territory where Cuba retained ultimate sovereignty.

The problem here can be perceived as not so much a case of not being able to bring the case to court, but an unwillingness to provide the detainees with their rights to due process. The men were captured by American citizens, under the sanction of the American government. Not hearing their case appears to be an unwillingness to take responsibility for the detainees. As can be seen in the final decision, United States courts indeed have the right to hear legal appeals when foreign citizens are held by the United States military, even in Guantanamo Bay. The decision was given in a 6-to-3 opinion, in which Justice John Paul Stevens stated that the United States had complete control of the Guantanamo Bay base, and could therefore hear cases of detainees held there.

The same is true of the Al Odah case, where twelve Kuwaiti men were seized by the American military and taken to Guantanamo Bay. In this case, the arrest was the result of local villagers seeking rewards for the men's arrest. The detainees were charitable volunteers and, as confirmed by their families, never part of any al Qaeda activities. The unconstitutional nature of the arrest is therefore quite clear, and reminiscent of the "war hysteria" so condemned by President Ford.

Even worse, the detainees were held in Guantanamo Bay for more than two years. They were not held as prisoners of war, nor were they charged, and were therefore not entitled to counsel in their defense. This was very convenient for the United States government, who did not find themselves legally obliged to do anything about the situation. They therefore also never bothered to consider the backgrounds of the men who were clearly innocent. Instead, they were categorized as terrorists on the basis of nothing other than their nationality and ethnic origin, just like Koramatsu.

The court cited the Eisentrager case to claim its right to hold the detainees and to deny them access to their families, the right to a hearing, and the right to counsel. However, this claim in itself is based upon little more than racial prejudice and the assumption of guilt over innocence. Clearly the men have been assumed to be guilty and are conveniently forgotten while they are held indefinitely. Indeed, the men could have been held for the rest of their lives under such assumptions.

As in the Rasul case, the 3-to-6 decision was that the detainees did indeed have the right to a fair trial, and the government's claim that the Court did not have jurisdiction in Guantanamo Bay was simply an attempt to avoid court review of its actions. Clearly the men did not deserve to be held for more than two years, nor were they held constitutionally. They were also not provided with any documentation regarding the claim that they were suspected terrorists, which they clearly were not.

The case surrounding Yaser Hamdi also focuses on constitutional rights for American citizens, even if there is grounds for suspicion that they are involved in terrorist activities. Yaser Hamdi was arrested in 2001 in Afghanistan, on the charge that he was fighting on the side of the Taliban. He was declared an enemy combatant and held in a Virginia military prison. The defense attorney Frank Dunham, Jr. filed a petition to declare Hamdi's detention unconstitutional on the basis that Hamdi was held indefinitely and denied the right to counsel. This denial is in fact even worse than the above cases, as it is leveled against an American citizen on American soil. The argument is that Hamdi should have the right to contest his status as enemy combatant before a neutral decision maker. Having been arrested in Afghanistan, Hamdi was not provided with any such opportunities and his detention was therefore seen as unconstitutional.

It does not appear that racial discrimination is part of the arrest and detention in this case. Instead, while there may be some basis for the arrest, guilt is assumed without providing Hamdi with the opportunity to challenge it. It can therefore be seen that, as in the above cases, his detention is equally unconstitutional. It was decided that Hamdi had the right to challenge his status, but three judges offered dissenting opinions. This is indicative of the controversial nature of the case, where emotion might rule out an objective view of the constitution. If a person is almost certainly guilty, the tendency is to treat him or her accordingly, particularly in cases where the issue is national security.

The case of Jose Padilla is similar to the Hamdi case. He was detained upon the strength of the President's determination of Padilla as an "enemy combatant." He was arrested when disembarking from a flight to the O'Hare International Airport in Chicago from Pakistan. Padilla was charged with involvement in the September 11 attacks in 2001. In contrast to the above cases, Padilla was provided with counsel, who helped him move to vacate the material witness warrant against him. On June 9 the President ordered that Padilla be declared an enemy combatant and detained in military custody. This decision was based on factual findings by the President.

This is an interesting case, because the central… READ MORE

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