The rights of detainees suspected of terrorist activities are a topic of active debates. Despite significant efforts on a legal level, the humanity of detention practices remains questionable. The following paper covers the legal aspects of terrorism-related practices in the United States.
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The first status used to justify the detainment of an individual is a material witness. From a legal standpoint, a material witness is a person who is in possession of information critical to a criminal proceeding. Thus, it is possible for the government representatives to request an arrest of someone who is considered material witness. In order to obtain a warrant, it is necessary to document the fact that a subpoena would be insufficient for ensuring the person’s cooperation.
The second status is alien, which can be described as any person who is not a citizen of the United States. The detainees that are considered aliens are usually subject to removal proceedings. However, in certain cases, such as when the detainees are suspected to be involved in terrorist activities, they can be subject to mandatory detention.
The third status is enemy combatant, who is defined as an individual involved in hostile actions against the United States either directly on by participating in respective coalitions. Despite a clear relation to military activities, the detention of enemy combatants is not considered to be subject to requirements set by the Geneva Convention due to their allegedly unlawful nature. Currently, the term is not recognized on a legal level.
Immigration detention and removal policies related to the investigation of terrorist activities are documented in the Immigration and Nationality Act (INA). According to the act, the Attorney General has the authority to detain aliens in order to determine the need for removal from the country. In the case where an alien is suspected to be involved in terrorist activities, mandatory detention is required (Siskin, 2012). The involvement is determined in a court hearing with no possibility to bail the detainee in question. The criteria for detention on the grounds of alleged terrorist activities are specified in the Patriot Act. According to the Act, any person considered by the Attorney General to be involved in activities endangering the security of the state on reasonable grounds is subject to detention (Elsea & Garcia, 2014). The maximum duration of detention for an alien who is believed to be involved in terrorist activities is six months unless they are subject to removal in the foreseeable future or their release is a threat to national security, in which case a repeated certification is issued.
It is also important to cover the federal statutes and judicial decisions regarding the detention of alleged enemy combatants outside the U.S. territory. A number of such individuals were captured and detained in various conflicts. The main legal document used in such rulings is the War Crimes Act, which grants the state authorities to detain and prosecute lawful enemy combatants. The Act relies on the definitions laid out in the Geneva Convention. The second most important document is the Detainee Treatment Act (DTA), intended to decrease the level of inhumanity permitted by the legislation. Among other things, it substitutes the right of federal courts to hear habeas corpus petitions of the detainees with a system of review of appeals (Povtak, Luckini, & Gorodetski, 2001). However, the judicial decision of the Supreme Court narrowed the effect down by making the DTA impact non-retroactive (Povtak et al., 2001). The approach was further refined in a 2008 ruling, when an important distinction was recognized between the active military zone and a physically controlled territory, granting additional rights to detainees.
As can be seen, the legal landscape pertinent to detention remains uneven. Despite changes made in the recent years, it still harbors the possibility of unlawful and inhumane practices. These possibilities should be subject to review by the U.S. authorities.
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Elsea, J. K., & Garcia, M. J. (2014). Judicial activity concerning enemy combatant detainees: Major court rulings. Web.
Povtak, R., Luckini, T., & Gorodetski, I. (2001). What authority does the U.S. have to detain? Web.
Siskin, A. (2012). Immigration-related detention: Current legislative issues. Web.