Ethics and the law Essay Sample

Ethics and the law

It is ethically correct for individuals who have had their ordinary rights be abridged during a state of emergency seek legal remedy. It is their fundamental right; their action would start a process which will support the protection of others in similar circumstances. After the 9/11 attacks in the U.S., the president at that time, George Bush was given the power by Congress to detain those who are seen as enemy combatants without trial. This was aimed at making sure that the detainees did not go back to the battlefield as well being interrogated to extract information. However, this decision led to some cases being filed in court (Jackson 2008). The case of Hamdi v. Rumsfeld was a decision by the Supreme Court to reverse the habeas corpus petition which had been dismissed. It was brought on behalf of Hamdi, a U.S. citizen being detained for an indefinite period as an enemy combatant.

Though the Supreme Court did recognize the power vested in the government in detaining unlawful combatants, it ruled that prisoners who are citizens of the United States must be able to challenge their being detained before an impartial judge. Hamdi had been captured in Afghanistan during the U.S. invasion, and the government accused him of fighting for the Taliban. However, through his father, Hamdi claimed that he was in Afghanistan as a relief worker and had been captured by mistake.

Hamdi was then transferred from Guantanamo Bay to a naval brig in Norfolk after being discovered to be a U.S. citizen. The government claimed that since Hamdi was caught fighting against the U.S., he was to be detained as an enemy combatant with neither access to an attorney nor an oversight of decision making by the president. They argued that this power was necessary as well as constitutional in the fight against terror as declared by the US Congress. The government’s detention authority was in ensuring that terrorists no longer posed a threat and suspects were fully interrogated.

However, Hamdi's father filed a habeas petition in a U.S. District Court, in Virginia, to challenge his son being detained indefinitely. A ruling by a judge, Honorable Robert Doumar, was that Hamdi had the right to be listened to and give evidence proving that he was not a combatant and that he should be given access to a public defender. However, on appeal, the order was reversed by the Fourth Circuit and ruled that the District Court failed to give proper deference to the interest of the government's intelligence and security.

Moreover, the case was sent back to the District Court, which deprived of the motion of the government in dismissing the petition by Hamdi. The judge found that the evidence presented by the government in support of Hamdi's detention was inadequate. The court then gave an order to the government to produce more evidence for the case. However, the government appealed the Judge’s order to produce the evidence. The Fourth Circuit ruled in favor of the government and again reversed the District Court; since it was unquestionable that Hamdi had been captured in an active combat against the U.S.

A statement by the Fourth Circuit was that it was not in order for any court to hear a challenge of his status. However, Hamdi's father appealed to the Supreme Court, which reversed the ruling by the Fourth Circuit and granted review. Most justices would agree that the Executive does not possess the power to hold, for an indefinite period, a citizen of the U.S. without protections through judicial review. The due process would require that Hamdi be given an opportunity to challenge his being detained. Hamdi had the right to gain access to counsel with the proceedings on remand. In addition, due process protections must be availed to Hamdi for him to challenge his detention and status.

Some Judges concluded the detention of Hamdi to be unauthorized, and he should be given an opportunity to give evidence that he was not an enemy combatant. A situation like this would raise a number of issues, for example, is the U.S. capable of detaining its citizens on the facts of being enemy combatants without them being charged with a crime? The other issue is, if a detainee decides to contest the status of his enemy combatant, then what manner of habeas corpus review, will he receive?

In the case of Hamdi vs. Rumsfeld, a divided Court established that individuals perpetuated to be enemy combatants have the legal right to challenge their being detained before a judge or other neutral decision-maker. The case was touching on the rights of a U.S. citizen who is detained as an enemy combatant.

However, the Court did issue an opinion that, in later cases, federal courts can be issued with the authority to consider habeas corpus petitions by individuals being detained at Guantanamo bay. It should be noted that detainees have rights under the United States Constitution and international treaties. Any failure in giving the detainees an opportunity to gain access to material evidence in proving their enemy combatant status, or denying permission to being assisted by a counsel, denied detainees of an opportunity to dispute the evidence given against them.

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In conclusion, the decision for detainees to be given a legal remedy would support the others who are in the same situation be given an opportunity to prove their case, whether a citizen or non-citizen of the U.S. It is a morally upright idea, for every human being be given an opportunity to present their case and given a fair trial.

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