According to the U.S. Constitution, it is unlawful to detain prisoners without trial or other Due Process. However, thousands of people in the U.S. are arrested and detained without probable cause. This paper discusses the power of the judiciary to detain certain prisoners without Due Process and its constitutional implications. The issues of unlimited detention in the name of national security are discussed.

The Judiciary

In the age of terrorism, preventive detention has become part of the constitutional realities in the U.S. Thousands of criminals are detained without probable cause, as a matter of prevention in the country’s fight against the major terrorist threats. However, the meaning of preventive detention is not mentioned in the U.S. Constitution. Moreover, the Constitution does not allow arresting and detaining certain prisoners without Due Process. Although it is essential to national security to arrest and detain certain prisoners quickly, indefinite detention is nothing but a cover for the serious constitutional violations in the United States.

The U.S. Constitution was created to promote and defend the fundamental rights and freedoms of American citizens. “In nearly all the States the Constitution provides that no person can be deprived of his life, liberty, or property except by due process of law; or by the law of the land or the judgment of his peers” (Stimson, 2004, p.169). According to the U.S. Constitution, no person is to be arrested, detained, or punished without due process of law (Stimson, 2004). Due Process is a complex abstract term that has to confirm the fairness and justice of all criminal justice and court procedures. Due Process can be broadly categorized along the two different lines – Procedural due process and substantive due process (Bergman & Berman, 2011). In case of arrests and detention, procedural due process plays the crucial role. Procedural due process means that prior to punishing the criminal defendant, he (she) must be given a legitimate opportunity to argue the charges against him (her) (Bergman & Berman, 2011). Despite the undisputable power of the U.S. Constitution, unlawful detention and arrests without Due Process are becoming less uncommon. The need to promote national security and protect the country from the terrorist risks often becomes the basic justification for arresting and detaining defendants in violation of the basic premises of the Constitution.   

The U.S. Constitution does not allow arresting and detaining people without probable cause. However, arrestees who want to prove that their arrest has been unlawful should pass a minefield of governmental protections and immunities and make sure to possess a substantial body of proof to support their claims (Frankowski & Shelton, 1992). Unlawful pre-trial detention is extremely controversial and difficult to prove. On the one hand, plaintiffs may face considerable difficulties proving the lack of probable cause. On the other hand, governmental immunities will hardly allow the plaintiff to prove that the police officers did not act in the line of duty and in good faith or that their actions were lawful and had to prevent criminal acts and decisions, including the acts of terrorism (Frankowski & Shelton, 1992). The notion of preventive detention is absent in the U.S. Constitution, and the U.S. criminal justice system is not entitled to arrest and detain prisoners without probable cause and in violation of due process of law. Nevertheless, national security is often used as a solid justification for arresting and detaining suspected criminals before trial. This, in turn, raises the question of whether or not it is essential to national security to arrest and detain certain prisoners without trial or other Due Process rights.

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Protecting national security is one of the U.S.’s top strategic priorities. It is no wonder that criminal justice professionals in the U.S. sacrifice the fundamental Constitutional premises for the sake of security at the state and national levels. Indefinite detention has become part of the criminal justice realities in the U.S. Just a couple of months ago, the Fourth Circuit Court dismissed the lawsuit filed by Jose Padilla, who stated that he had been arrested unlawfully and tortured in a South Carolina military jail for more than three years (Erchull, 2012). The case raised discontent among civil rights advocates and, once again, proved that national security was a matter more important than unlawful arrests and detentions. However, even when national security becomes a matter of the utmost importance, constitutional violations cannot lead the country and its criminal justice system to the desired goal. With certain exceptions to the general rule, indefinite detention should be limited and strictly regulated. The United States is a society of liberty and democracy, and the only exceptions to the Due Process rule should include: (a) detaining aliens who cannot or should not flee to their country of origin; (b) confining prisoners with mental disorders who pose a physical threat to the country and its people; (c) placing prisoners under a quarantine for public health; and (d) detaining based on the executive’s “war powers” (Blum, 2008). These limitations and exceptions will become another incentive for the criminal justice professionals to work more effectively and develop a sound body of proof, before a person is arrested and detained. These are the limitations that will protect the fundamental rights and freedoms of U.S. citizens and ensure the legitimacy of criminal justice procedures in the country. As of now, indefinite detention and arrests in the name of national security look more a cover for the unlawful acts of criminal justice professionals in the U.S. In the 1990s, between 6,000 and 14,000 wrongful convictions were made in the U.S. every year (Frankowski & Shelton, 1992). Today, even when the evidence supporting wrongful conviction and imprisonment is strong and undisputable, plaintiffs face considerable difficulties recovering and proving the mistake (Erchull, 2012). Under the cover of the national security priorities, almost every U.S. citizen can fall victim to the imperfect legal nature of indefinite detention. Therefore, even in the most serious situations, protecting national security is possible only within the limits set by law. Due Process should remain the foundational ingredient of all criminal justice decisions in the U.S.

It is unconstitutional to arrest and detain certain prisoners without Due Process. Unfortunately, unlawful arrests in the U.S. are becoming less uncommon. In the name of national security, criminal justice professionals in America arrest and detain thousands of people. However, even national security cannot justify the decision to arrest and detain certain prisoners without Due Process. The U.S. Constitution does not contain the notion of preventive detention, nor does it allow indefinite detention of certain prisoners. With few exceptions, Due Process should remain the fundamental rule governing all criminal justice and trial decisions in the U.S. 

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