The Rights of the Accused
by Fred E. Foldvary, Senior Editor
Natural Moral Law prescribes that it is evil to coercively harm others. If a person is suspected or accused of a crime or infraction, he retains his human right to be free from harm. This morally constrains the government when it captures a suspected criminal.
If the government keeps the suspect locked up without any accusation or trial, it is an immoral kidnaping. The only moral justification for an imposed government is the implementation of justice and protection from coercive harm. If a person is suspected of having committed a crime, the government is morally obligated to process an explicit accusation or charge.
In the United States, a crime that is punishable by death, as well as other major crimes, requires an indictment, a written accusation presented by a grand jury, except for the military during a time of war. For crimes not involving the death penalty, the indictment may be waived. Otherwise, the crime is prosecuted by 'information,' meaning an accusation provided by a competent prosecutor. In many cases, information may be used instead of a grand jury.
The holding of persons by government without any accusation is a violation of a person's natural rights. This is also a violation of the U.S. Constitution. Amendment IV recognizes the right of the people to be secure in their persons. A warrant is required for persons to be seized. This applies to all persons, not just U.S. citizens. Amendment V states that 'no person' shall be deprived of liberty without due process of law. The U.S. Constitution also recognizes habeas corpus, a writ to establish legal detention.
Does the U.S. Constitution apply to prisoners held outside the country borders? The U.S. government has been holding prisoners at the military base in Guantanamo on the island of Cuba. Guantanamo is within the international border of Cuba, but the U.S. holds the base as a permanent possession, now for over 100 years. It is under the control of the U.S. government, and thus the U.S. has legal jurisdiction. Any crime committed in Guantanamo would be tried under U.S. law, not Cuban law.
Moreover, the powers of the U.S. federal government are Constitutionally enumerated. The U.S. federal government only has those powers specifically allocated to it by the Constitution. If the Constitution does not explicitly permit the U.S. to hold prisoners without charges brought against them, then the government may not do it. The government should therefore either present accusations against the prisoners, or else let them leave.
The same principle applies to those held in Iraq and other places under the control of the U.S. government. Iraq is a sovereign country, but without a sovereign government, so the coalition authority is the sovereign government. The U.S. Constitution applies to captives held by the U.S. government, including Saddam Hussein.
After a charge has been made accusing a person of a crime, then by Amendment VI he is entitled to a speedy public trial. Court cases have provided four criteria for whether a delay in the trial is reasonable: the length of the delay, the justification for a delay, how the defendant asserted his right to a speedy trial, and the harm caused by the delay. The Speedy Trial Act of 1974 established time limits for the stages of the prosecution of federal cases. There should be in all cases a set of rules with time limits and justification for any delay by the government.
Where old English law applies, as in the U.S., criminals have had a right to a trial by an impartial jury, a right inscribed in the U.S. and state constitutions. Natural moral law does not require a jury. In many countries, judges hand down the verdict. In private law, the contract determines who may determine guilt. The problem with using judges is that the judge is appointed by government officials, and thus the accused is tried by the same government that accused him. A properly chosen impartial jury provides for a trial by the nation, not by the government. It is best for the defendant to be able to choose whether to be tried by a jury or by one or more judges.
The U.S. government is violating the natural rights of prisoners of the 'War on Terror' or in Iraq held without charges, and acting beyond the powers delegated to it by the Constitution. We shall see how the Supreme Court rules on such cases. If the U.S. persists in such violations, it weakens the case against terrorists in general, because two wrongs do not make a right. It is a logical contradiction to destroy liberty in order to save it. It is precisely the times of stress that test whether America is truly committed to liberty and the rule of law.
-- Fred Foldvary
Copyright 2004 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.
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