The Debate Over Due Process Rights for Accused Terrorists

Instructor: Patricia Jankowski

Patricia has a BSChE. She's an experienced registered nurse who has worked in various acute care areas as well as in legal nurse consulting.

International terrorism has become an enormous and elusive global concern. It is an issue that must be handled with consideration for the rights of the accused, but also for the security of civilians. This lesson will examine this delicate balance.

What is a Terrorist?

The creation of a terrorist begins with a feeling of powerlessness against the actions of an opponent with a great deal of power, or one who has behaved oppressively toward a group to which the terrorist belongs. The actions of a terrorist are designed to create fear. Those who become victims of these actions are not usually the real target of the terrorist. Do terrorists have rights? That depends on who you are and how you see it. But in any case, the actions of terrorists are violent and they are against the law, not just in the U.S., but all over the world.

How are Terrorists Different From Prisoners of War?

Prisoners of war are those enemy soldiers who are caught and detained during a war or conflict and are to be treated according to a certain code that acknowledges some basic human rights. Prisoners of war (POWs) are people who are captured by the belligerent, or powerful war-waging group. They belong to organized military forces, like armies or navies. The term ''POW'' can also include any person associated with these military forces, or those engaged in guerrilla activity. They originate from a given country or territory.

Terrorists are not POWs. They may come from anywhere or from a combination of places and may be an individual or a group. Their activity is not open, but secret. They do not follow the rules of war, instead, they act to draw attention to their demands and to intimidate their enemy, who is usually some powerful group rather than a particular country. They often have strong ideologies or beliefs, and may not be afraid of dying to protect or promote these beliefs. And, they're not afraid of killing the innocent, either.

What are Due Process Rights?

Due process rights are the rights of the accused, per the U.S. Constitution or the laws of other countries, when the law is carried out. It's the ''process that is due'' to those accused of breaking the law so that the innocent are not unjustly punished. Due process is ensured by the Fifth and Fourteenth Amendment of the Constitution. The Magna Carta refers to due process as the ''legal judgment of peers'' and the ''law of the land''.

Balancing Justice and Security

During wartime, POWs have been granted some basic rights according to the Geneva Convention, which makes it legal to ask a prisoner only for his name, date of birth, rank and serial number, and makes it illegal to torture a prisoner. This is a global law even though it has not always been followed. In the modern world, especially since 9/11, it has been found that Geneva Convention law doesn't work well when dealing with terrorists. So, new legal limbos have been created to help balance justice with the security of civilians threatened by terrorist activity. This is not an easy thing to do, and it's not really a surprise that sometimes there's an overreach.

September 11 and the PATRIOT Act

After the attacks of September 11, 2001, measures were taken by the Bush administration to expand the powers of the FBI for fighting terrorist activity, and in October of 2001 the PATRIOT Act, or Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, was passed. This law gave the President more power to deal with those accused of terrorist acts, and in 2002, a special prison, known as Guantanamo, was created for the detention of suspected al-Qaeda members and captured Taliban.


The new Guantanamo Bay prison was located in Cuba, outside U.S. territory. Prisoners being held there were detained without a formal charge, and the Geneva Convention was not observed, nor were there any Constitutional protections.

Enemy Combatants

A new legal category was also created by the Bush administration, known as enemy combatants. Any prisoner who was designated to be an enemy combatant basically had no rights, and since anyone accused of terrorist acts was presumed to be acting outside of the usual rules of conduct for war, it was open season on these prisoners when it came to interrogations. In 2009, President Obama got rid of the ''enemy combatant'' designation, but not any of what went with it.

Are Due Process Rights Being Violated?

So, were the due process rights of prisoners held at Guantanamo violated? Yes, they probably were. A Red Cross report stated that detainees were drugged and put in solitary confinement. They were exposed to extreme cold and heat. They were intimidated for the purpose of interrogation, and all of this without a formal charge or trial by a jury of peers. Many of these detainees were quite young. But in view of the horrible results of terrorist acts and the dangers to civilians, was this warranted? Is it right, or wrong?

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