National Security Crimes

This section looks at how President Bush chose to conduct a war against terrorism (despite the absence of a declaration of war) rather than pursuing cases in the standard criminal justice system as had been the case against the first World Trade Center bombing suspects in 1993. This illustrates a fundamental shift in the legal process which will provoke intense student debate.

Students should have some basic familiarity with rights afforded to an accused under our Constitution. The 5th, 6th and 8th amendments establish a number of those rights, including the right to legal counsel, the right of confrontation and discovery of evidence against that person, the right to a full and fair hearing, and so on. These all spring from the basic notion that a person is presumed innocent and that it is better for a guilty person to go free than to convict an innocent person. However, in the growing concern over homeland defense, people want to feel safe rather than to concern themselves over the rights of suspected terrorists. This makes it a hot topic for class discussion and debate. First we look at the unique historical requirements of treason. It was the original national security crime found in Article III, Section 3 of the U.S. Constitution. However, treason is hard to prove. Therefore, in recent times, for example in United States v. Rahman, you can see why the Government chose not to prove treason—the crime with which the defendants were charged— but rather the charge of seditious conspiracy. We also have the crime of international terrorism which includes violent or dangerous acts that appear to be intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion. The court also addressed the defendants' claims of free speech, religous beliefs, and the vagueness of the charges.

In Padilla v. Bush, we see the court will allow suspected enemy combatants to be characterized as criminals or terrorists. According to the statement of facts later given by the U.S. Supreme Court:

Padilla is a United States citizen. Acting pursuant to a material witness warrant issued by the United States District Court for the Southern District of New York, federal agents apprehended Padilla at Chicago's O'Hare International Airport on May 8, 2002. He was transported to New York, and on May 22 he moved to vacate the warrant. On June 9, while that motion was pending, the President issued an order to the Secretary of Defense designating Padilla an enemy combatant and ordering his military detention. The District Court, notified of this action by the Government's ex parte motion, vacated the material witness warrant.

Padilla was taken to the Consolidated Naval Brig in Charleston, South Carolina. On June 11, Padilla's counsel filed a habeas corpus petition in the Southern District of New York challenging the military detention. The District Court denied the petition, but the Court of Appeals for the Second Circuit reversed and ordered the issuance of a writ directing Padilla's release. This Court granted certiorari and ordered dismissal of the habeas corpus petition without prejudice, holding that the District Court for the Southern District of New York was not the appropriate court to consider it.

The present case arises from Padilla's subsequent habeas corpus petition, filed in the United States District Court for the District of South Carolina on July 2, 2004. Padilla requested that he be released immediately or else charged with a crime. After Padilla sought certiorari in this Court, the Government obtained an indictment charging him with various federal crimes. The President ordered that Padilla be released from military custody and transferred to the control of the Attorney General to face criminal charges.

The Government claimed the defense of mootness based on the premise that Padilla, now having been finally charged with federal crimes and released from military custody, had received the relief he was seeking. Padilla responded that his case was not mooted by the Government's voluntary actions because there remained a possibility that he would be redesignated and redetained as an enemy combatant.

Student Activities and Assessment Tools

Have the students read the court of appeals case of Padilla v. Bush and the U.S. Suprme Court case in Padilla v. Hanft. The students should then debate the merits of denying detainees many legal rights, including the most important one—the right to a habeas corpus challenge. Does the denial of rights to an alleged terrorist in any way say something about our society that espouses freedom, civil rights, and due process? What about someone who really is innocent? You may wish to use the suggested assessment form.
Have your students research online how many persons have been tried and convicted at a U.S. War Crimes Trial since WWII. (Answer: one. David Hicks received nine months in prison after his conviction. He had been detained at Guantanamo Bay for 5 years and was eventually tried in front of a military commission.)