The Fifth Amendment Under Attack

The Fifth Amendment under Attack

Angela Bordonaro

POL 201 American National Government

Instructor Matthew Szlapak

July 21, 2012

Rasul V. Bush

The Fifth Amendment is made up of five specific parts containing six different clauses. This Amendment's best known clause is recited on every crime show on television it is where the Miranda warning is derived from. It is also the Amendment that guarantee's a person indictment by a Grand jury. This Amendment gives us the assurance the justice is indeed blind, and everyone is entitled this justice. So what happens to people that do not fit into the framework of "blind justice". This paper looks at the Fifth Amendment as it relates to Rasul V Bush.

Fifth Amendment-Part 1

"No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment of indictment by the grand jury.

Fifth Amendment-Part 2

"No person shall be subject for the same offence to be twice put in jeopardy of life or limb

Fifth Amendment - Part 3

"No person shall be compelled in any criminal case to be a witness against himself"

Fifth Amendment-Part 4

"No person shall be deprived of life, liberty, or property, without due process of law

Rasul V. Bush

The events of September 11 changed the United States forever. We had always been a nation proud to say on the world stage that we believed in humanity and the humane treatment of all. The events of that day brought out vengeance on a national level. We became a nation set out to defend our

homeland and we were determine to right the wrongs committed on United States soil by any means

necessary. There were decisions made during that time that were emotionally charged and the fact that we were a nation bound by Constitutional restraints that keeps us humane went up in smoke with the first airplane that hit the first tower on September 11, 2001. As a result of what happened on the day deemed "911" President George W. Bush on November 13, 2001 signed an order establishing the

government's right to use military tribunals to try accused terrorist fast and in secret (Dreams, 2001).

This paper explores how one detainee challenged the American President and the judicial system, and

the Fifth Amendment.

Facts of Rasul V. Bush

In 2002, the United States military began transporting suspected terrorist captured in Pakistan and Afghanistan to the United States military base in Guantanamo Bay Cuba. The Bush Administration declared those captured as enemy combatants rather than prisoners of war in his effort to deal justice his way bypassing both the United States Constitution and the Geneva Convention which would have served as protection for these prisoners to ensure they were dealt with swiftly and judiciously. President Bush signed an order on November 13, 2001 establishing the government right to use military tribunals, something that had not been done since World War II citing that it was a new tool to use against terrorism and was put into effect to circumvent the federal court system which was thought to be too lenient to try suspected terrorist (Hess, 2004). This order did not require approval from congress and since they were not members of legitimate armed forces the Bush Administration decided the protections afforded by the Geneva Convention did not apply to them. According to the Administration, the prisoners in Guantanamo Bay Cuba may never be granted a trial, either military or civil, and they may be detained until the end of the war on terrorism (Rights, 2009).

In early 2002 the Center for Constitutional rights filed two habeas corpus petitions, and one of those petitions was Rasul V. Bush challenging the United State government's practice of holding foreign nationals captured in connection with the war on Afghanistan in detention indefinitely, without counsel, and without the right to trial or to know the charges against them. The CCR filed the writ of habeas corpus in the District Court for the District of Columbia. The petition challenged the Executive Order that was signed on November 13, 2001 which authorized indefinite detention without due process of law (Dreams, 2001).

The core of the litigation brought on by the CCR was that the United States cannot order

indefinite detention without due process. The detainees have the right to challenge the legality of their

detention in court, they have the right to be informed of the charges they face, and they have the right to present evidence on their own behalf. After the CCR filed the first habeas corpus petition, the

government filed a major motion to dismiss claiming that the detention was not based on military

orders, but on the common law powers of the President. The district court ruled on August 2, 2002 that a petition for habeas corpus was not available to non-U.S. citizens detained outside of the United States (Rights, 2009).

The CCR appealed to the Court of Appeals for the D.C. Circuit court arguing that if the US did not have jurisdiction over the matter, then no court had jurisdiction. This in essence gave the United States the latitude to act in any way it chose without being subject to any laws or regulations. The CCR argued that under the American constitution there had to be a process in place to review the lawfulness of the detentions that were being carried out in Guantanamo. On 3 March 2003 the D.C. Circuit rejected the appeal. The court did not acknowledge the fact that the detainee's had not been declared "enemies" of the United States by any lawful tribunal, and were therefore being held in captivity. This was seen as an approval for the United States President to act lawlessly and without regard for the law or human rights.

The CCR President at the time, Michael Ratner stated "The right to test the lawfulness of one's detention is a foundation of liberty that has roots that go back to the Magna Carta. The U.S. is not only denying