Posted: March 24th, 2023

Compulsory Process Clause

After the September 11, 2001, terror attack in the United States, which claimed thousands of lives, the federal government targeted foreign citizens who were suspected of any unlawful activity in its security measures. Any foreign citizen suspected of terrorism or any related activity was subject to trial by military tribunal. A number of foreigners in the US were arrested and detained on suspicion of terror-related activities. Based on their nationality, most of the foreigners were subjected to detention, selective interrogation, and deportation. Those who were mainly affected by this operation were mostly the Muslim and the Arabs.

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However, the manner in which these foreigners were treated was widely criticized. Indeed, it seemed as if non-Americans did not enjoy the same constitutional right as Americans. Given the security threat in the U.S., most people thought that treating foreigners differently was constitutional and legitimate. In fact, when President Bush allowed the formation and use of military tribunals, the Vice President defended him by saying that “anyone who comes to America and conducts a terror attack, killing innocent Americans do not deserve the same guarantee and safeguards used on an American citizen while undergoing a judicial process” (Cole, 2003, p. 367). Therefore, this clearly shows that the Compulsory Process Clause does not apply to citizens outside America.

The issue that foreigners should not enjoy the same constitutional rights as the American nationals was supported by the Supreme Court when it issued orders of the mandatory detaining of foreigners who had been charged with deportable crimes (Cole, 2003). The US government was accused of double standards in interpreting its constitution since some laws were being applied differently to non-citizens. For instance, after the September 11 attack, Zacarias Moussaoui, who had been arrested in connection with the terror attack was denied the right to have witnesses in his defense. Although the Court had allowed him to have the witnesses who were in the United States custody, the state rejected the order on grounds that Moussaoui was a foreigner thus the request could not be granted. However, the court issued an order to have the Secretary of State to produce the witnesses arguing that the witnesses were under the custody of the U.S. government.

The decision by the court and the government to treat foreigners differently leaves the question whether; foreign nationals have limited rights and freedom. The court has insisted that the foreigners are people living amongst us and are equally protected by the Constitution (Cole, 2003). On the other hand, the court allowed deportation and detention of foreigners without a fair trial.

The government and the Courts have on different occasions treated foreigners differently from the way they treat their citizens. The security measures taken after the 9/11 attack saw people from other nations, especially Arabs and Muslims being detained and some were deported. Additionally, in the case of Moussaoui, the State had initially denied him the right to have witnesses claiming that he was not an American, hence did not enjoy the Compulsory Clause right. However, the Fourth Circuit claimed that since the witnesses were in US government custody, Moussaoui had the right. Therefore, the court ordered the Secretary of state to produce the witnesses for the defendant. Essentially, the compulsory process clause should apply to people outside the U.S. only if their witnesses are private citizens of the United States.

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