(This is a paper that I wrote for one of my courses.  Opinions welcomed)

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.”  The Fifth Amendment (Nash, et al., 2006, pp. A-9)

The Bill of Rights guarantees under the Fifth Amendment the right of due process.  What this means is that we, as Americans are innocent until proven guilty.  This amendment provides us with five protections against actions by the government that may be capricious.  To begin with, we find that prosecution for a crime without a grand jury indictment is not possible.  To persecute an individual for the same crime twice, or to force an individual to testify against one’s self is within the Fifth Amendment, which we as Americans simply cannot do.  The Government may not deprive an individual of life, liberty or property nor can the government take our property for a public purpose without giving us fair payment for it.  It is this amendment, which I feel the United States since September 11, 2001 has greatly compromised with their current disposition of dealing with terrorism.  It is my assertion that the Fifth Amendment while a cornerstone of American society has become a dilapidated burden in the war on terror in their pursuits, that America has forgotten the convention of Due Process.

In American Society, we find that the three most known historical documents are the Bill of Rights preceded by the Constitution and the Declaration of Independence (Our Documents).  The order that these are in comes as no surprise as they seem to stem in order right out of our history.  These three documents, important enough to us that we learn them in middle school, junior high school, high school and even in college, are so well known that we even seem to celebrate the freedoms they bring with them.  The importance of these documents is of no question, but what these documents mean these days stem from a grave imperative that seems to bring to question the manner in which our democratic society functions.  Since 9/11, we have found that new laws created seem to curtail our freedoms, yet instead of feeling violated in some manner, we seem to feel safer knowing that these violations of our freedoms are protecting us in some manner.

From the Dred Scott v Sanford ruling, which was of the opinion that freeing Scott would be a clear violation of the Fifth Amendment to modern day rulings of Boumedine v. Bush where prisoners of Guantanamo Bay have a right to habeas corpus.  These rulings show that Americans fully believe and want to protect not only their freedoms but also the freedoms of those around them. 

Dred Scott v Sanford was an issue of Slavery versus Property Rights.  Dred Scott felt that because he was taken into an area where slavery was restricted due to legal regulations (the Missouri Compromise), he should be considered a free man, in turn he sued his owner for this freedom.  Part of the issue was if a slave legally could use the courts to sue his owner and if he was truly a citizen of the United States.  The Supreme Court decided that slaves were indeed, property and therefore not citizens so they could not use the courts.  The court focused on the rights of the owner, not the rights of the slave stating that “freeing Scott would be a clear violation of the Fifth Amendment because it would amount to depriving Sanford of his property without due process of law” (Touro Law Center, 2006).

In the current case, Boumedine v. Bush, we are seeing where United States intelligence officers suspected involvement in a terrorist plot by six men, including Boumedine, whom the United States classified as enemy combatants and subsequently detained.  A writ of Habeas Corpus was filed for alleging violations of due process (as well as violations of various statutes and treaties, the common law and international laws) (The Oyez Project).  This brings into question the rights of those whom we take prisoner in regards to war.  The Fifth Amendment clearly states that we may do such, but does it make it ethically or legally correct to do such?  What if the individuals who we are denying rights to, suddenly found to be innocent of the crimes of which they are accused, were to object to our persecution?   Would our lack of objection to the Patriot remain the same if we were to start accusing Christians of this crime?

To put this case in light, let us focus on the mere aspect of two groups of Americans accused of such terrorism, both taking part in different periods to examine how we have changed.  First, let us look at the Rosenberg’s, who were executed for the crime of treason during the McCarthy era. Following this, we will examine the case of the Oregon Lawyer, Brandon Mayfield who was held erroneously for a crime of terrorism. These two cases will demonstrate how much the United States has changed within the past 60 years, in regards to due process.

Ethel and Julius Rosenberg’s story is one that is well known.  During the McCarthy era many individuals were accused of being Communists.  Their tale takes place during this time, when the cold war and development of the Atomic bomb was imminent, when war heroes such as General Douglas McArthur and Winston Churchill praised the Communists, for the war efforts against Nazi Germany; there is little doubt that such praise may encourage individuals to be Communists.  There is little doubt that individuals during this time were anti-Communist within the United States, and there is little doubt that there was an underlying pro-Communist movement transpiring due to the praise given (Linder, 2001).

No matter how much of a farce this trial may have been, nor how much truth underlies its evidentiary procedures, the fact remains that the Rosenberg’s were found guilty of the crime of treason.  Judge Kaufman's statement and sentencing was in accord with the seriousness of the crime at that time, “I consider your crime worse than murder. Plain deliberate contemplated murder is dwarfed in magnitude by comparison with the crime you have committed. In committing the act of murder, the criminal kills only his victim. The immediate family is brought to grief and when justice is meted out the chapter is closed. But in your case, I believe your conduct in putting into the hands of the Russians the A-bomb years before our best scientists predicted Russia would perfect the bomb has already caused, in my opinion, the Communist aggression in Korea, with the resultant casualties exceeding 50,000 and who knows but that millions more of innocent people may pay the price of your treason. Indeed, by your betrayal you undoubtedly have altered the course of history to the disadvantage of our country” (Linder, 2001).

The Rosenberg’s proclaimed their innocence until the day of their execution on June 19, 1953.  However, unlike today’s cases where we see individuals being held without due process, individuals being held as prisoners of a war which is still undetermined on how exactly one predicts to win a war on an idea rather than on a people, they were given due process.  They were permitted to use the judicial system of America to the best of their ability and determined to be, after the fact, guilty as charged.

Today we see individuals being held in locations outside of the United States, given no due process and being guilty until proven innocent.  The guilt of the individuals stems from an issue of their religious beliefs.  A blatent violation of not only the first amendment but also of the nineth amendment where we are guarneteed freedom against religious persecution.  We single out those who pratice Islamic beliefs and claim that they are, in fact, terrorists, not because of any amount of proof which we may or may not have to determine this, but because we have proclaimed a war on a subject which is at best difficult to prove the idealization of until it is too late.  We have proclaimed a war on an idea, one that in the best interests in our country seems to invite our persecution of beliefs that go outside of our Christian norm and place itself in the realm of deviancy.

The process we find now comes into this semblence of control.  We find someone who we believe to be a terrorist, it is not merely enough for them to be “just” a terrorist, but we also must find one whom is Islamic, or Muslim in order to prove that these intentions are justified and proper.  We then, much as we did during the McCarthy era, accuse them of being a Terrorist (or Communist if you want to equate such).  In this process, instead of providing them with at least a trial and a means of getting out of this accusation, we use the Patriot Act to our advantage, we use survalence, we witness them attending their religious services, we then proclaim that they are plotting against the United States.  From this point, they are no longer seen as “innocent” but they are now combatants in a “war”.  As combatants they have very different rights, they have different motivations and the military has a right to detain them.  The military has a right to question them without legal representation in order to preform their duties and protect our country, even if they are American Citizens, naturalized or born.

This process includes removing from them their constitutional rights, which if they are Muslim, we have removed already by our own determination that their religious beliefs are “terroristic” in nature.  To see the rights of any group removed in such a manner brings to question our own rights, and it also brings to mind George Orwell’s book, “1984”, “People simply disappeared, always during the night. Your name was removed from the registers, every record of everything you had ever done was wiped out, and your one-time existence was denied and then forgotten. You were abolished, annihilated [sic]: vaporized was the usual word” (1948, p. 20).  To realize that at any moment simply because of the religion you choose to practice, within a country built upon religious persecution and the determination to be able to practice the religion one chooses freely without interference from the government, brings to question what is the true purpose behind the ideas that America was founded upon. 

This brings us to the case of Brandon Mayfield, an Oregon lawyer accused by the Federal Bureau of Investigation (FBI) to be a terrorist responsible for the Madrid Bombings.  In this case, the FBI used the Patriot Act to determine that Mr. Mayfield was guilty of crimes of treason, and they in turn, arrested him and held him.  While a Grand Jury convened, Mr. Mayfield found himself denied several key elements, based off the high profile of the crime.  First, rather than subpoena him to answer for his crime the government decided that it was best to hold him in prison.  The government refused to permit him to have access to the proper legal methods of defending himself, they denied the defense an opportunity to question or challenge any of the key witnesses or evidence.  This in turn created issues and problems, which is normal any time the accused is an attorney, and the government chooses to search the attorney’s place of business, for this creates even more issues if it is a defense attorney, and there are open cases which confidentiality is an issue. 

Under the fourth amendment, a warrant, in order to obtain one, should have some support by probable cause, however, the Patriot Act has done away with the necessity of probable cause, and your religious practices are enough to condemn you regardless of the actuality of having committed a crime.  Franz Kafka’s classic novel, “The Trial”, in many ways mirrors what happened to Mr. Mayfield, and seems to be a projection straight from novels into true life.  Apparently, what you practice in religious beliefs is slanderous enough to have you arrested (Epps, 2007). 

When you find yourself arrested like this, it is different, as Kafka points out,  “It seems to me that it's something very complicated - forgive me if I'm saying something stupid -something very complicated that I don't understand, but something that you don't really need to understand anyway” (2008, p. 7).  In “The Trial”, Kafka seems to be pointing out that individuals need to have the right of due process and all that entails.  Without due process, we fall, as a society into a realm of deviancy that we cannot correct.  We fail as a society to recognize individual differences and see how these differences complete our society rather than hinder, we find that we object so strenuously to these differences we merely destroy all differences so that we may find ourselves beholden to the norms of society.  In America, the norms constitute being a Christian, but what transpires if we are not?  In today’s society, we have seen what the Patriot Act entitles officials to do in order to secure our safety from Terrorism, we are at war with a concept, and one that is difficult to prove until the act of terror is complete.

Yet America’s principles founded on Freedom of religion, so why now do we find that we are returning to a period of having to hide our own religious practices?  Why now do we proclaim terrorism to be such a driving force that the accusation is enough to cause panic in the hearts of Christian men and women worldwide?  Should we look back to the crusades where we slaughtered millions for their religious beliefs and refusal to convert?  Should we truly return to that stage in time?  Or perhaps the McCarthy era is enough for us to return to where we blackball people and persecute entire families off the belief that they’re different from us so we should cast them out and starve them until they return to where they came from?  What is the ethical thing to do?  To permit individuals to practice their religious beliefs, develop tolerance and permit the risk of terrorist attacks to transpire or to persecute innocent individuals based off a religious belief that we do not beholden ourselves to?

Generally, the rights guaranteed by due process are simple.   One has the following rights:  to a fair and public trial conducted in a competent manner; to be present; to an impartial jury; to be heard in one’s defense, to reasonably written laws so one can comprehend what is criminal behavior (Mount, 2006).  While dealing with the Patriot Act, we find that we have denied ourselves the protections that were once within our Constitution.  No longer do we have freedom of religion, freedom from persecution; but instead we now find that we persecute individuals based off their religious beliefs, and claim that Muslim practitioners must be terrorists.  Why it is that we equate one to the other seems to be merely because they fail to obtain the Christian norm that we subscribe to, yet was not our original norm freedom of religion based off our own history, our own persecution by England for desiring to practice our own form of religious beliefs? 

What is it that makes us think that we are important as a society, that our beliefs are superior to all others?  Is it because we are a democratic nation, which founded on Christian beliefs?  What happens when an individual Muslim shows us that not all are as we have determined them to be?  That not all are in a Jihad against the United States – have we not seen this?  Do we not understand this to be true?  The war that we find ourselves fighting in Iraq, and Afganistan are difficult to explain.  We are going after individuals, based off their religious beliefs, and persecuting them, and with this persecution, we find that we decimate our own constitutional rights in order to subject them to our own understanding of their beliefs.  Did we not do this during the Crusades when we tried to force the Muslims into Christian beliefs?  Is this not in some manner a repeat of history?

First they came for the Jews

and I did not speak out

because I was not a Jew.

Then they came for the Communists

and I did not speak out

because I was not a Communist.

Then they came for the trade unionists

and I did not speak out

because I was not a trade unionist.

Then they came for me

and there was no one left

to speak out for me. (Niemöller, 1934)

How true even today these lines are.  We as Americans do not speak out, not against the presecution, which we are; finding ourselves subjecting others to simply because of the divergence from our Christian based faith.  Even more so, we find that we do not speak out simply because of our own fear of an accusation of being a terrorist and imprisoned unjustly, without a fair trial at Guantanamo Bay.  Yet we are more than willing to allow others, whom we claim to be “combatants” regardless of the truth of it to be imprisoned and held without any rights and without any manner of obtaining due process from our own country.  They may not challenge us.  They may not have a trial; they may not have any opportunity to prove their guilt or innocence.  They merely are guilty of a crime of being Muslim, perhaps, some are indeed, terrorists, but the guilt of a few does not justify the injustice to an entire population.

To this end, we must as a people look at the injustice we are doing, not only to ourselves, but also to those around us within society and see if this war on terror is really our own form of terrorizing others or if it is a proper and necessary subjugation of our own rights.  Are we prepared to delve into a future for our children where religious persecution is unavoidable?  Alternatively, do we desire a future for our children that is better then what we had.  I seriously have doubts that this type of internal strife and struggle is what the framers had in mind when creating the Bill of Rights.  This struggle and balancing act with the Patriot Act is one that is a daunting process, yet one must truly challenge the ability to declare war on an idea that is so abstract that it is difficult to prove until after an attack transpires.  It is in this manner that we find the dilapidation of the Fifth Amendment and with it; our constitutional rights seem to be foreign even to ourselves.

Works Cited:

Epps, G. (2007, October 3). Salon.Com. Retrieved July 5, 2008, from News and Politics: http://www.salon.com/news/feature/2007/10/03/brandon_mayfield/

Government, U. (n.d.). The USA Patriot Act. Retrieved July 5, 2008, from EPIC: http://epic.org/privacy/terrorism/hr3162.html

Kafka, F. (2008, July 5). The Trial. (E-Book). (D. Wyllie, Trans.) Project Gutenburg.

Linder, D. (2001). Famous Trials. Retrieved July 5, 2008, from The Rosenberg Trial: http://www.law.umkc.edu/faculty/projects/ftrials/rosenb/ROSENB.HTM

Mount, S. (2006, September 28). Constitutional Topic: Due Process. Retrieved July 5, 2008, from USConstitution.net: http://www.usconstitution.net/consttop_duep.html

Nash, G. B., Jeffrey, J. R., Howe, J., Frederick, P., Davis, A., Winkler, A., et al. (2006). The American People: Creating a Nation and a Society (Seventh Edition ed., Vol. One). (M. Boezi, Ed.) New York, New York: Peason Longman.

Niemöller, M. (1934). First They Came For. Retrieved July 5, 2008, from http://www.telisphere.com/~cearley/sean/camps/first.html

Orwell, G. (2008, July 5). 1984. (E-Book). Retrieved July 5, 2008, from 1984: http://www.online-literature.com/orwell/1984/

Our Documents. (n.d.). Retrieved July 5, 2008, from The People's Vote: http://www.ourdocuments.gov/content.php?flash=true&page=vote

Reid, T. (2008, June 13). Guantanamo Bay trials in disarray after US Supreme Court ruling. Retrieved July 7, 2008, from The Times Online: http://www.timesonline.co.uk/tol/news/world/us_and_americas/article4123181.ece

The Oyez Project. (n.d.). Retrieved July 5, 2008, from Boumediene v. Bush, 553 U.S. ___ (2008): http://www.oyez.org/cases/2000-2009/2007/2007_06_1195/

Touro Law Center. (2006). Supreme Court Cases Summary. Retrieved July 5, 2008, from http://www.tourolaw.edu/patch/casesummary.asp