Features

The Right to a Lawyer and to Due Process: By ANN FAGAN GINGER

CHALLENGING RIGHTS VIOLATIONS

Tuesday October 05, 2004

Probably the best-known human rights in the U.S. are the right to a lawyer and the right to due process. Anyone who has ever been arrested in a mass protest or in a strike may have also heard of the right to habeas corpus: the right, immediately after being arrested, to be brought before an official in the judicial system and told on what charges you are being held.

18. The Government’s Duties to Guarantee Due Process of Law, Right to Council, and Habeas Corpus

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The Fourth Amendment prohibits unreasonable searches and seizures by the Government of the person, and property, of any person suspected of a crime. The Sixth Amendment guarantees the right to counsel in all criminal prosecutions, a speedy public trial, a trial by an impartial jury. All defendants have a right to know the charges against them and to “be confronted with the witnesses against [them]; ...” they can have “compulsory process” to bring people to court to testify for them, and they have the right to have lawyers assist in their defense. The Seventh Amendment protects the right to jury trial in civil cases. The Eighth Amendment spells out the right to be freed on bail that is not “excessive” and “no cruel and unusual punishments” shall be “inflicted.”

These historic procedural rights are also spelled out in modern terms in the UN Charter, Articles 55 and 56, Int’l. Covenant on Civil & Political Rights Arts. 1-27, and Convention on Elimination of Racial Discrimination Arts. 1-9.

Report 18.2

PATRIOT Act Labels Ordinary Crimes “Terrorism,” Increasing Penalties (PL 107-56) (David B. Caruso, “Antiterror Laws Often Used Against Street Criminals,” Mindfully.org, Sept. 15, 2003.)

Report 18.3

Ashcroft Arrested Well-Known Defense Lawyer for Egyptian Sheik: Lynne Stewart (Susie Day, “Counter-Intelligent: The Surveillance and Indictment of Lynne Stewart,” Monthly Review, Nov. 2002.)

Report 18.5

U.S. District Court Kept Secret Habeas Case of Detained Algerian: Bellahouel (Dan Christenson, “Scrutinizing ‘Supersealed’ Cases,” Miami Daily Business Review, December 2, 2003.)

Report 18.6

Courts Reject Sections of Anti-Terrorism Act and PATRIOT Act (Press Release, “Key Provisions of Anti Terrorism Statute Declared Unconstitutional,” Center for Constitutional Rights, December 3, 2003.)

Report 18.7

Jury Acquits One Charged with Terrorism; DOJ Public Integrity Section Investigates Charges: Koubriti (David Cole, “The War on Our Rights,” The Nation, December 24, 2003.)

Report 18.9

U.S. Takes Native Land for Nuclear Waste Repository and Resource Extraction: Despite 1863 Treaty (“Bush signs Western Shoshone legislation: Tribal leaders view bill as massive land fraud,” Western Shoshone Defense Project, July 7, 2004.)

19. Not to “Detain” “Enemy Combantants” at Guantanamo or Anywhere

The most pervasive human rights violations since 9/11 occurred during the detentions of people on various grounds. The clear legal right to retain a lawyer, and to go before a judge in a habeas corpus proceeding to find out the charges—the Bush Administration uniformly denied these due process rights to detainees, in violation of federal and international law.

Most people were detained before they were killed or disappeared by the U.S. Government, or before they were subjected to torture. Thousands were detained after they:

•Exercised their right peaceably to assemble.

• Went to register at the request of the U.S. Government.

• Tried to exercise their right to travel.

• While awaiting decisions on their applications for political asylum.

• While the military decided what to do with military personnel seeking conscientious objector status Political prisoners continued to be detained.

The largest category of detainees, and those held the longest without any due process or procedure for determining why they should be detained, were the men arrested all over the world and held by U.S. military forces at Guantanamo Bay, Cuba.

Victims and their lawyers argued that many provisions of the U.S. Constitution were violated by these detentions, including:

Art. I, §§§ 8; 9, cl. 2; Art. II, §1, cl. 8; §2, cl. 1; §3; Art. VI, cl. 2; 1st, 4th, 5th, 6th, 8th, 14th Amendments; UN Charter Art. 1.3, 2.2, 55, 55(a)-(c), 56, 73 (a)-(d), 74; OAS Charter Art. 106; ICCPR Preamble, Arts. 1- 27; CAT Preamble, Arts. 1- 10; 3rd, 4th Geneva Conventions

Report 19.1

UN and OAS Concerned that U.S. Ensure Competent Tribunal for Guantanamo Detainees (Petition to Inter-American Commission on Human Rights on Behalf of the Guantanamo Detainees,” Center for Constitutional Rights, August 2004.)

Report 19.2

U.S. Sends U.S. Citizen Hamdi to Guantanamo; Supreme Court Exercises Jurisdiction (“Jailed American's Parents Sue U.S.,” Associated Press, July 29, 2004.)

Report 19.3

Middle Eastern Men Detained, Tortured, Denied Rights (Associated Press, “Guantanamo Camp Expands,” Aug. 26, 2003.)

Report 19.4

U.S. Navy Arrested U.S.-Syrian Airman Al-Halabi, Seized His Defense Papers; Released Him (Barbara Grady, “Judge Frees Accused U.S. Guantanamo Spy From Jail,” Reuters News Service, May 12, 2004.)

Report 19.5

U.S. Supreme Court Grants Detainees Rasul and Al Odah Habeas Review (321 F.3d 1134; Rasul v. Bush, 124 S. Ct. 2686 (2004).)

Report 19.6

U.S. Supreme Court Vacated Judgment for Detainee Gherebi, Remanded (Bush v. Gherebi, 124 S.Ct. 2932 (2004).)

Report 19.7

Released British Detainees Allege Abuses at Guantanamo (Clare Dyer, “Britain stands firm against Guantanamo Bay trials by tribunal,” Guardian, June 25, 2004.)

To be continued...

Berkeley resident Ann Fagan Ginger is a lawyer, teacher, activist and the author of 24 books. She won a civil liberties case in front of the U.S. Supreme Court in 1959. She is the founder and executive director of the Meiklejohn Civil Liberties Institute, a Berkeley-based center for human rights and peace law.

Readers can go to mcli.org for a complete listing of reports and sources, with web links.

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