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 the detainees fundamental rights, but is jeopardizing any claim that it is a country ruled by law.”
On September 2, 2003 the CCR filed a petition for certiorari in the United States Supreme Court. There were many amicus briefs filed in support of the petition. This was two years after 9/11 and Americans were coming back to themselves so the long term detentions without hearings were causing alarm among individuals and organizations that swore to uphold justice. In November 2003, the Supreme Court granted certiorari in Rasul V. Bush. The Supreme Court heard the arguments on April 20, 2004 and on June 28, 2004 they ruled in favor of the detainees.
Legal Question The question in this case is “does the United States have jurisdiction to consider legal appeals filed on behalf of foreign citizens held by the United States military in Guantanamo Bay Naval Base
Cuba?” The case that was used as the precedent Johnson V. Eisentrager, 339 U.S. 769 (1950) where the court ruled six to three that prisoners had no right to sue since U.S. courts did not have jurisdiction over foreign nationals, and they were not situated within any territory which the United States was sovereign. The lawyers for the detainee’s argued that the differences in the two cases lie in the fact that the Eisentrager case allowed the Germans to be tried in a military trial in which they were found to be war criminals, and the Germans were also enemy aliens because they were citizens of a country known to be an enemy of the United States. The current detainees were citizens of countries known to be friendly with the United States. The most important fact that rendered Eisentrager case analogous was the fact the Guantanamo Cuba is under exclusive jurisdiction and control of the United States. The most amazing thing about this case is that if they won, the only thing that would happen is the detainees would have an opportunity for due process; they were not going to be released if they won this argument. The Relevancy of the Fifth Amendment The Due Process Clause of the Fifth Amendment states in part that “No person shall be deprived of life, liberty, or property without the due process of law”. The Habeas Corpus statute, 28 states that a writ of habeas corpus may be granted by the Supreme Court within their respective jurisdiction will extend to a prisoner when he is in custody in violation of the Constitution of the United States. When the detainees were held indefinitely without charges or access to any form of process this was unlawful according to the United States Constitution. The landmark ruling of Rasul V. Bush established that the
United States Court has authority to decide whether foreign nationals held at Guantanamo Bay were wrongfully imprisoned. The six to three ruling reversed the District Court decision which held that the judiciary had no jurisdiction to handle wrongful imprisonment cases involving foreign nationals.
My Opinion Lord Action said “power tends to corrupt; absolute power corrupts absolutely”. Immediately following the events of 9/11 the tone of the United States changed. Gone were the love and forgive our neighbor platitudes replaced with desire and motivations for revenge. Never in history had a United
States President showed such raw emotion than to enact an order that so violated the constitution the way the order he signed on November 2001 did. Never in history of the United States did so many people that were given the responsibility of ensuring justice takes place by ensuring the blindness of justice turn a blind eye ensuring blindness towards justice. These events showed the world that the
United States is not immune to the injustices that are brought about by extreme hurt comingled with extreme power and forgetting that we have sworn to be more humane than our neighbor. When the abuse of power starts at the very top, with the most elite American Citizen deciding to retaliate for rather than letting justice take its course, either he did not believe in the system in which he was the Commander In Chief or he did believe in the system but he decided that he was taking matters into his own hands. Either way, he denied individuals the due process that is their right according to
United States law.
Argument for Detainees The arguments that were presented were that Guantanamo Bay should be considered part of the United States for purposes of habeas corpus because it is under complete control of the
United States government for an indefinite lease. The government also conceded that for the purpose jurisdiction if the detainees were American Citizens and they were detained in Guantanamo they would have jurisdiction. It was also argued that the Executive Branch should not be allowed to create prisons outside the scope of the law. More importantly at the core of the Fifth Amendment is the language that prevents unlawful bodily restraint, which is what occurs when a person is held without charges or access to any form of process.
Decision
Justice Stevens wrote the majority opinion joined by Justices O’Connor, Ginsberg, Souter and
Breyer and found that federal courts have jurisdiction to consider habeas corpus petitions from detainees at Guantanamo Bay Naval Base in Cuba. The court distinguished the detainees in question from those in Eisentrager and also held that statutory jurisdiction can instead be based on the jurisdiction of the person who is holding him in unlawful custody. In this case the court found that the
Secretary of Defense as custodian was well within the jurisdiction. Justice Kennedy concurred by joining the five justices in holding that the federal courts have habeas corpus jurisdiction over the detainees at this point. Justices Scalia, Justice Rehnquist, and Justice Thomas dissented from the judgment of the
Court and would not have allowed the detainees to bring their habeas petitions before a federal district court. Conclusion
While the case was pending, Rasul was released from Guantanamo and given to British authorities and freed completely shortly after his arrival in England.

References:
Dreams, C. (2001, 11 13). Common Dreams.org. Retrieved 09 29, 2009, from Common Dreams.org: www.commondreams.org
Hess, D. (2004, 05 05). Rasul V. Bush and Al Odah V. United States. Streetlaw, pp. 1-6.
Rights, C. f. (2009, 09 29). Rasul V. Bush. Center for Constitutional Rights, pp. 1-2.