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Bob McMillanAn Opinion

By Bob McMillan
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Detaining Americans

One very controversial portion of the Defense Authorization Bill signed by President Obama at the end of last December contained a provision to allow the federal government to detain, indefinitely, United States citizens who are suspected of terrorism. At the heart of the controversy is the U.S. Constitution.

The new law gives the military more authority to detain and interrogate both U.S. citizens and non-citizens. Under the new law, such detainees can be denied legal rights provided by the Constitution. Now, President Obama has stated, “I want to clarify that my administration will not authorize the indefinite military detention without trial of American citizens.”

Just what is this all about? As you may recall, enemy combatants have been detained at Guantanamo (GITMO) for some time. President Obama’s efforts to close GITMO have not been successful with both sides of the aisle wanting to maintain the prison there, which holds people like the mastermind of the 9/11 attacks.

It is interesting to note that back in 2004, the Supreme Court of the United States ruled that the military can hold a U.S. citizen as an enemy combatant so long as the person being held has the right to procedurally challenge whether he or she is truly an “enemy combatant.”

In the 2004 Supreme Court case, Hamdi was a U.S. citizen of Saudi descent who was captured on a battlefield in Afghanistan. The ruling meant that he could be detained so long as he was given the opportunity to have due process applied to the question as to whether he was an enemy combatant.

What we have here is a balance between the security of our nation and individual rights under the U.S. Constitution. There are three areas of the Constitution where the Supreme Court ruled in the 2004 case – Hamdi v. Rumsfeld.

First, we have to take a look at the Sixth Amendment to the Constitution. It states that, “In all criminal prosecutions the accused should enjoy the right to a speedy and public trial…”

Next, in the Fourteenth Amendment, it states that all citizens are entitled to “…due process of law…” From these points, it can well be argued that the Sixth and Fourteenth Amendments should apply to all U.S. citizens whether they are or are not enemy combatants.

But, there is one other provision of the Constitution found in Article 1, Section 8. That part of our Constitution gives to the Congress the power to “…provide for the common defense…” The section goes on to say that the Congress has the power, “To declare War … and make Rules concerning Captives on Land and Water;”

With all of the above, we come back to the issue of security for our country in these times of terrorists – some homegrown Americans… and the due process of law for U.S. citizens. My view is that if a court holds that an American citizen is truly an enemy combatant, that individual should be detained for the best interests of the country. Our security is at the heart of these thoughts.

Robert McMillan Website: www.bobmcmillan.net