To what extent do MPs represent their constituents?

Since the election of “Blair’s babes” in 1997, there has been an increased focus on the composition of the House of Commons (HoC) in terms of gender, age, race and class. More recently Osborne stated that “we are all in this together” but Miliband has been quick to draw attention to the privileged background of the Chancellor and the Prime Minister. Some argue that whilst the HoC does not mirror society, it cannot adequately represent it. Others would argue that MPs can still serve their constituents even if they come from a different background.

MPs cannot adequately represent their constituents due to the gender gap evident in the HoC. Labour’s attempts to impose women only short lists and Cameron’s A team list have only partially remedied the imbalance between the sexes. Although there is an upward trend with 22% of all MPs being women, this is a long way below the national average of over 50% for the population as a whole. This may mean that the issues debated in parliament may be less centred on family and child care issues.

MPs do not represent their constituents due to the educational background of MPs which can be linked to class. Cameron (MP for Whitney) went to Eton, Clegg MP for Sheffield, to Westminster. In the Conservative party the number of Conservative MPs from private schools has fallen to 53% compared to the 6% who go to fee paying schools nationally. In the Labour party the figure was lower at 14%.

MPs are also unrepresentative of the racial composition of UK society. Notwithstanding the election of 3 Muslim women for the Labour party in 2010 with 16 MPs from black and ethnic minority groups and the Conservatives with 11, the numbers of clack and ethnic minority groups has doubled from 15 in 2005 to 27 in 2010.Those from a non-white background comprise 4% of the MPs compared to 8% in the population as a whole.

Whilst the HOC is not a microcosm of society that is not to say it cannot adequately represent constituents’ views. An examination of the legislation reveals that the interests of women, racial minorities and others are adequately protected even if the HoC does have a predominance of middle aged, middle class men. Abortion was provided by a private members bill in 1967, Disability Acts, Equal Pay Acts, Race Relations Acts have all been passed by parliament. The Human Rights Act 1998 outlaws discrimination and the government has recently declared its intent to legalise gay marriage. All these examples reveal MPs can act as delegates – representing the views of their constituents rather than their own personal interests.

Similarly MPs represent their constituents’ views as they follow the party line on which they were elected. Backbench rebellions are rare even if they are on the increase. The mandate model usually applies with MPs adhering to the party manifesto. It is rare for MPs to clash with their own party given the use of the whips in parliament. Indeed PMQs usually reveals MPs promoting the interests of constituents with requests for meetings with or visits from the Prime Minister to examine a matter of local concern such as the closure of a local hospital.

MPs also represent constituents’ views because if they don’t, they will not win the next election. Nadine Dorries runs the risk of de-selection due to her time in the “jungle”. Websites such as Theyworkforyou.com reveal how MPs vote and the issues on which they speak in the HoC. This level of scrutiny ensures MPs who do not represent their constituencies are likely to lose their seat in the HOC. This serves as a powerful sanction to ensure MPs do not act too independently in accordance with Burke’s trustee model. Regular local surgeries held most weekends bear testimony to the fact that MPs remain in touch with their constituents.

DOES THE EXECUTIVE HAVE TOO MUCH POWER?

Lord Hailsham stated that the UK has an “elective dictatorship” in the sense that the executive is able to dominate the legislature. It could be said that the UK has a fusion of powers rather than a separation of powers. Whilst it could be argued that the UK system is markedly different from that of the US which is based upon the separation of powers, it should be recognised that there are limits upon the power of the executive.

The executive could be said to have too much power principally because parliament is unable to serve as an effective check. The government controls the parliamentary timetable which restricts the function of both houses. Private members bills are unlikely to be successful which caused Jack Straw to demand that the backbenchers be given more powers.

The influence of the whips ensures that the government wields great power and is able to avoid any significant defeats. The use of a three line whip means that MPs must toe the party line of face sanctions. This might be through the use of the “carrot” with the possibility of promotion to cabinet rank or the use of the “stick” with the withdrawal of the parliamentary whip as has recently happened with Nadine Dorries. MPs could face deselction if they do not obey the commands of the executive.

Parliamentary sovereignty is also a key factor in the unchecked power of the executive. Not only do the government have the use of strict party discipline via the whips but they have an inbuilt majority in the House of Commons. Labour had enormous majorities of 179 and 169 after their landslide election victories of 1997 and 2001 respectively. As there is no power of judicial review due to the absence of a written constitution, the government has a virtual blank cheque to legislate how it chooses when in office. Government defeats are exceedingly rare as the House of Lords only has the power of delay after the Parliament Acts of 1911 and 1949. In this sense Parliament is nothing more than a “rubber stamp” endorsing the decisions and policies made by the executive and MPs no more than lobby fodder which reduces parliament as a whole to nothing more than a “talking shop.”

The power of the executive however should not be exaggerated. The government does face several real constraints.

Parliament cannot be taken for granted. At the present time the coalition government faces a particularly rebellious House of Commons. It may have a majority of 83 but the Conservative backbenchers particularly have shown a tendency to revolt inflicting significant defeats on the government over House of Lords reforms and the issue of a referendum on the EU. The whips would seem powerless to keep Conservative eurosceptics in line and Cowley and Stuart have pointed out that MPs are more inclined to rebel today than in the past.

Recent legislation has also served to curb the power of the executive. The Human Rights Act has greatly empowered the judiciary to check the government. On issues such as the deportation of Abu Qatada and prisoners’ right to vote, the government has agreed to abide by the spirit of the rulings and the HRA. This amounts to form of judicial review which limits executive power. Similarly, the Constitutional Reform Act of 2005 has ended the power of judicial appointment by the executive and handed it to an independent judicial appointments committee.

The power of the executive is also checked by the people at election time. Just as the people can give the government a mandate, they can remove a government from office. The system of first past the post is brutally efficient in not only creating a strong government but also in providing the means of holding the government to account. Consequently Labour were unceremoniously removed from office in 2010 which provides a graphic demonstration of the checks on executive power.

In a parliamentary system, the government will wield great power and the executive does have more power than in other systems. The British Prime Minister is more powerful domestically than a US president. The control over the legislative process means that public bill committees are unlikely to support opposition amendments and the power of Departmental Select Committees renders them as watchdogs without teeth. Governments can reject their findings. That power is however subject to a very real constraint at election time when the people exercise the ultimate power which does then ensure that the executive does not have too much power. 

Discuss how effectively parliament checks the executive

The recent government defeat over the issue of the EU budget was a rare occurrence. For the most part the executive dominates the legislature. Indeed Lord Hailsham described the relationship between the two branches of government as an “elective dictatorship”. However, whilst the separation of powers may be less obvious than in the USA, the UK parliament can still actively check the executive.

Parliament is unable to effectively check the executive due to the Westminster model of parliamentary government. This ensures that the executive has an inbuilt majority in the House of Commons and when this is allied to the exercise of strict party discipline and the limited powers of the House of Lords, it ensures that parliament can do little to check a government. This is especially the case when there has been a creation of a large majority after an election such as 1997 and 2001 with Labour majorities of 179 and 167 respectively. Majorities of 66 in 2005 and 83 with the coalition in 2010 mean that all the other parties united cannot defeat the government thus rendering Parliament relatively powerless.

The work of parliament illustrates how the legislature cannot check the government effectively. This is clearly evidenced by the work of Public Bill Committees. With an inbuilt majority for the government as composition reflects the outcome of the general election on the floor of the Commons and pressure from the whips over selection and voting, opposition amendments to bills are very rarely adopted. The notion of line by line, clause by clause scrutiny of a bill is called into question when the government, through the use of the guillotine can end discussion before every clause has been considered. Butler described the process as “futile marathon” and Tony Wright as a “shocking state of affairs”.

The same analysis applies to Prime Minister’s Questions (PMQs). This provides an opportunity for backbench MPs from both parties and the leader of the HM Opposition to hold the government to account. As a form of scrutiny however it can be argued it is an ineffective check. Miliband has 6 questions that he can use to challenge the PM. The PM though can avoid answering the question and more often than not, the session is reduced to petty point scoring and yah-boo politics. The leaders are more concerned with coming up with a sound bite that can be used on the news and government MPs ask planted questions designed to make the PM and the government look good. High entertainment it may be an effective check on government it is not.

The ability of Parliament to check the executive then does face some real constraints however there are opportunities for the legislature to rein in government.

Departmental Select Committees allow the legislature to hold the government to account. Created in 1979 in recognition of the fact that the executive has too much power and that existing scrutiny was ineffective. There is a DSC to shadow each government department and a liaison committee of the chairs of the DSCs that can question the PM. Unlike question time there are no time constraints and the DSCs have the power to call for papers, civil servants ministers and outside experts in order to develop sustained scrutiny of a government department. They have shown their independence with the likes of Andrew Tyrie, chair of the Treasury committee questioning the present austerity programme. The Culture Media and Sport Select Committee questioned ministers such as Hunt about their close relations with the Murdochs and News International during the phone hacking scandal.

MPs do not always toe the party line and this allows the HOC to act as a check upon the executive. Cowley and Stuart argue “Rebellion has become the norm, cohesion the exeception” since the start of the coalition government. Backbench Conservatives particular have shown that they are more than mere “lobby fodder” with significant revolts over the issue of a referendum on continued membership of the EU and House of Lords reform. The government even suffered a defeat over its approach to the EU budget. Consequently the executive can be said to face very real constraints in parliament.

The Speaker has also played his part in improving parliament’s ability to check the government. Speaker Bercow has allowed more emergency debates. When this is coupled to written questions and other mechanisms such as the ten minute rule bill and early day motions, parliament does have the ability to challenge the government. The most recent innovation of e-petitions and a backbench committee further bolster parliament as a check on the executive.

THE 2011 -12 TERM – CHIEF JUSTICE ROBERTS LEADS THE COURT

There can be little doubt that the ruling on Obamacare was the decision that was most eagerly awaited from the Court in this term, indeed many regard NFIB v Sebelius as a landmark ruling and one which define the Roberts Court. It is therefore worthy of detailed analysis. Several key points might be made in this regard.

· The voting on the issue of the constitutionality of the Patient Protection and Affordable Care Act was surprising in that it was expected that it would Justice Kennedy who would provide the swing vote on the issue. It was anticipated that the usual conservative bloc of Roberts, Scalia, Thomas and Alito would face the liberal bloc of Ginsburg, Breyer, Sotomayor and Kagan, with Kennedy providing the pivotal vote. The fact that it was Roberts and not Kennedy that joined with the Liberals was therefore a great surprise.

· Roberts did not sanction the act under the interstate commerce clause as the others did but under the right of Congress to levy taxes.

· This action has meant that the Court has avoided being drawn into the political arena as it was with rulings such as Bush v Gore. It was an example of judicial restraint. In his opinion, Chief Justice Roberts stated “It is not our job to protect the people from the consequences of their political choices.”

· The ruling has helped the Obama presidency.

· In doing say Roberts has helped ensure that the respect for the Court is retained. This is a key determinant of its legitimacy, authority and power.

Before this ruling though, there have been signs that the Court has been increasingly seen to be divided upon partisan lines. With the departure of the liberal justices Stevens and Souter, both of whom were appointed by Republican presidents, voting on the Court increasingly reflects impact of presidential appointments. The liberals were appointed by Democrat presidents, conservatives by Republican ones. This was particularly to the fore in the Citizens United v FEC ruling from 2010.

In the last term however there seemed to be less signs of a clear ideological divide. Cases such as Hosanna – Tabor v EEOC were unanimously decided. Justices Kagan and Alito issued concurring opinions which might be regarded as an unlikely alliance and might be credited to the statecraft of Chief Justice Roberts.

Kennedy remained the key swing voter and showed that he support both liberal and conservative causes[1] and Justice Kagan voted with him more than with any other (83%) which might suggest that Court may not have the straight 4:4:1 split which is normally attributed to it. Chief Justice Roberts was in the majority 92% of the time which further supports the view that there is a new “centre” bloc emerging. Justice Kennedy had in the past shown a slight bias (60%) toward the conservative side but this was not evident in this term. Chief Justice Roberts was the swing voter, not only in NFIB v Sebelius (Obamacare) but also in Arizona v US

Generally, it would seem fair to say that the pigeonholing justices and courts as “liberal” or “conservative” is to be avoided. The Court and cases are too complex to allow such a shallow and easy analysis. Only 15 of the 75 cases were 5 – 4 rulings which would support the view that Court judges each case on its merits. Chief Justice Roberts seems to want to avoid the Court being overtly “political” and consequently has guided the Court to restrict itself to constitutional matters. In cases such as FCC v Fox TV and national Meat Association v Harris he has been able to secure unanimous rulings.

The conservative wing was able to prevail in several cases .These included:

1.  Freedom for churches to choose their own ministers in the sense that it prevented government control

2.  Restrictions on the Environmental Protection Agency planning controls

3.  Florence v Board of Chosen Freeholders  Strip searches regardless of the offence

Liberal “victories” for the court could include:

·  US v Alavrez (securing free speech)

·  Hosanna v Tabor (freedom of religion)

·  US v Jones (need for a warrant for GPS trackers on cars)

·  Maples v Thomas (right to appeal)

·  Missouri v Frye (right to lawyer)

·  Lafler v Cooper (right to a lawyer)

·  Miller v Alabama (no to mandatory life sentences for juveniles)

·  NFIB v Sebelius (Obamacare)

·  US v Arizona  (Arizona’s immigration laws too harsh)

THE 2012 -13 TERM

Fourth amendment rights

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This need for a warrant means that the police must secure permission from the (independent) judiciary before searches can be conducted. The right stems from 14^th century English law.

The right provides a great illustration of how the Supreme Court have been able to adapt the constitution to suit modern demands and issues which could not have been foreseen by the Founding Fathers. The right forms part of the rationale behind Roe v Wade 1973 which established a woman’s right to choose a termination based upon the right to privacy established in Griswold v Connecticut in 1965.

With the liberal Warren court 1953 – 1969 favored the rights of the accused against those of law enforcement orders. Hence Mapp v Ohio 1961 fourth amendment rights were imposed on all state criminal cases with regard to evidence obtained without a warrant which would be regarded as inadmissible from then on.

Perhaps more pertinently, in US v Katz 1967, the Court held that phone tapping was unconstitutional without a warrant. The fact that in 2013 in Clapper v Amnesty International the Court ruled that the government could undertake warrantless surveillance illustrates

1.  How the outlook of the Court has changed since the days of liberal activism from the Warren Court.

Perhaps predictably the Court split upon ideological lines with a 5 - 4 split comprised of Roberts, Scalia, Alito, Thomas and Kennedy rejecting the arguments put forward as they lacked legal standing to present a case. Justice Alito argued the journalists presenting the case had not been affected by the law and so they could not sue.

The Court by denying standing to the plaintiffs has restricted cases that can be brought before it. Hence the ACLU point out that the judiciary have not ruled on:

a)  Torture

b)  Rendition

c)  Targeted killings

d)  Warrantless surveillance

This in part can be explained by the passive appellate nature of the Court. The Court needs to wait for cases to come before it before it can make a ruling. Even then, as in the case, a narrow interpretation of rights and the composition of the Court can result in a conservative decision which effectively undermines rights in the USA and beyond.

The New York Times argued that “The court’s decision is a clear-cut abdication of its fundamental role in the American constitutional system of checks and balances, which ensures that Congress and the president are not infringing on protected rights.”[2]

2.  How the executive can undermine rights. The initial measures were introduced by the Bush administration after the 9/11 attacks and have been supported by the Obama administration since 2008.

3.  How the legislature can undermine rights. In 2008, Congress amended the Foreign Intelligence Surveillance Act granting the executive the authority to conduct surveillance without a warrant.

4.  The role of pressure groups in protecting rights. Amnesty International and the ACLU supported the case. The ACLU argued that the ruling leaves “privacy rights to the mercy of political branches.”

The same principles were in play in Maryland v King which considered whether DNA could be collected from those arrested but are yet to be found to be guilty. Under the principle of innocent until proven guilty, the collection of DNA could have been viewed as an invasion of privacy.

Maryland Court of appeals had held that collection of DNA of those arrested but not yet convicted violated the Fourth Amendment.

ABORTION AND THE IMPACT OF THE PRESIDENTIAL AND CONGRESSIONAL ELECTIONS

During the actual campaigns abortion was a key issue that was to the fore. At the presidential level, the candidates stated their positions. Mr Romney distanced himself from his previous position when governor of Massachusetts and adopted less of a pro-life stance. At the Senate level, two Republican candidates were defeated in what were winnable states after declaring that a woman could “close her body down” to end a pregnancy and that even rape was part of “God’s plan”.^[3] Ultimately the ability of the president and the Congress to affect the availability of abortions is restricted to:

1. The appointments a president can make to the Supreme Court and
2. Controlling the funding that can be allocated to organisations such as Planned Parenthood.

With regard to the former, the constitutionality of abortion rights has been long established with the Roe v Wade ruling of 1973. Many regard this as being part of the political landscape. Previously, when there has been a conservative majority on the Court, Roe has been upheld with rulings such as Planned Parenthood v Casey (1992). The availability of abortion though has been undermined by rulings such as Webster v RHS (1989)and Rust v Sullivan (1991).

Consequently is it is highly unlikely that Roe v Wade would have been overturned even if Mr Romney had won and had been able to make appointments to the Court. If pro-life justices had been appointed then the possibility of abortion rights being chipped away with marginal changes here and there could have been a more likely possibility.

Mr Obama’s victory is likely to lessen such a development. The Court is finely balanced with: a conservative wing of Roberts, Thomas, Scalia and Alito; a liberal wing of Ginsburg, Breyer, Sotomayor and Kagan and centrist voter with Kennedy. Ruth Bader Ginsburg is 79 and has spoken of retirement, Justice Kennedy is 76.

If Justice Ginsburg were to retire during Mr Obama’s second term, he could appoint another liberal pro-choice justice and so there would be no real impact upon the balance of the Court. If however, Justice Kennedy were to go, this would be have greater significance as a centrist, conservative leaning justice, could be replaced by a liberal. This would represent a significant change in the balance of the Court potentially for some time to come. Presidential appointments to the Court long outlast a presidential term and are regarded as the president’s greatest legacy. President G.W. Bush was able to appoint the conservative Justice Alito to replace the centrist justice O’Connor in 2006 and his impact has been marked. There are no signs that Justice Kennedy will retire. It is argued that justices sometimes like to wait until there is a president of a similar political outlook to themselves before they retire. In judicial terms, at 72 Kennedy is “nowt but a bairn^[4]” as they say in Yorkshire. Justice Stevens was 90 years old when he retired in the 2010.

Presidential nominations require a simple majority vote in the Senate. After the 2012 election, the Democrat majority increased from 53 to 55^[5], thus strengthening Mr Obama’s hand. There is a possibility though that Republicans could use the filibuster to oppose a nomination so this power of appointment is not completely unchecked.

Discuss the view that the Roberts Court is a conservative court

The landmark ruling of NFIB v Sebelius in 2012 which sanctioned Obamacare provides a clear illustration of the jurisprudence of the Roberts Court as it ruled contrary to public expectation in a liberal manner. However, others would suggest that this is the exception rather than the rule.

The Roberts Court may be regarded as conservative due to the composition of the court and the impact of recent appointments. Following the resignation of Justice O’Connor, President GW Bush had the opportunity to replace a centrist swing voter with a conservative. Justice Alito. This bolstered the conservative wing of the court. Justices Scalia and Thomas were already in place after their appointments by Presidents Reagan and GH Bush respectively. The bush appointments of Roberts and Alito, with Justice Kennedy who supports the conservative side 60-70% of the time has meant that the Court has a conservative majority which can outvote the liberal bloc of Ginsburg, Breyer, Kagan and Sotomayor. Obama’s appointments have had little impact. Sotomayor and Kagan replaced two liberals (Souter and Stevens respectively) unlike the Alito appointment.

The rulings from the court also indicate a conservative bias. Conservatives are less likely to support the accused in criminal proceedings and to favour the states over federal government. In 2012, in Florence v Board of Chosen Freeholders, strip searches were allowed despite privacy rights outlined in the 4^th Amendment. Baze v Rees 2007 held that the lethal injection was not cruel and unusual punishment despite the fact that its administration by non-medical staff might result in lengthy deaths during which the prisoner is conscious. In 2011, in Chamber of Commerce v Whiting, Arizona state laws were upheld.

The court can also be seen to be conservative in the sense that it does not want to be active. It seeks to exercise judicial restraint. Its present day docket of c 75 is half that of the liberal activist Warren Court. Chief Justice Roberts particularly does not want to see the court embroiled in “political” issues. In Hedges v Obama in 2013, the court upheld the National Defense Authorization Act which allows indefinite detention without trial of US citizens on alleged terrorist connections.

However, the rulings of the court and the opinions of the Court would suggest that it should not be labelled as conservative. The 2011-12 term provides clear examples of the way in which the court can be deemed to upheld liberal causes. US v Jones prevented GPS tracking without a warrant supporting 4^th amendment privacy rights. Maples v Thomas and Lafler v Cooper supported 6^th Amendment rights to a lawyer. Arizona v US and National Meat Association v Harris both supported federal pre-emption over states’ rights. Clearly these rulings would suggest that the court cannot be labelled as conservative.

It should be noted that the justices do not always vote in a political manner. Many of the rulings are unanimous such as US v Jones. The conservative troika of Scalia, Thomas and Alito supported this liberal cause in US v Jones. Similarly, liberals may join with conservatives as was the case with Sotomayor and Ginsburg in Knox v Service employees International Union which curbed union spending.

These facts would suggest that the court judges each case on its merits and justices should not be pigeonholed as liberal or conservative; neither should the court.

There are many constraints upon the court too which prevent from being conservative. It is an appellate court. It must wait for cases to come before it. Hence there have been no rulings on the Patriot Act because no cases have reached the Court. It is bound by the wording of the Constitution. The Court cannot simply rule on a personal political whim. Their opinions are subject to scrutiny. The justices respect the constitution and previous rulings or precedents. US v Katz was cited as part of the justification for US v Jones last year which explains this liberal ruling.

Chief Justice Roberts seems to exercise a degree of leadership in ensuring that the Court is not perceived to be an adjunct of the conservatives. His swing vote in NFIB v Sebelius was indicative of his attempts to steer the Court away from political controversy and accusations of conservative bias which followed the Rehnquist Court ruling of Bush v Gore.

Consequently, it would seem inappropriate to label the Court as conservative. Cases such as FEC v Citizens United which opened the floodgates to an unprecedented avalanche of corporate donations to political campaigns may be cited as a sign of a conservative bias but there are plenty of other cases which reveal a liberal tendency such as Boumediene v Bush. Of the 75-80 cases each year, only around 15 will be 5 - 4 splits. To label the court ten as conservative is a shoddy and superficial analysis. 

Discuss the view that rights are not adequately protected in the USA today.

In the aftermath of the bombs at the Boston marathon, there is a possibility that there could be a knee jerk reaction from the authorities which could see national security concerns override individual rights. It should be recognised however that the USA has a well-established rights culture which would suggest this will not be the case.

Developments since 9/11 clearly illustrate the fragility of rights in the USA and suggest that they are not adequately protected. Most recently, the National Defense Authorization Act 2012, paved the way for indefinite detention of US citizens without trial due to alleged association with terrorist groups. There are even first amendment free speech concerns relating to journalists’ ability to criticise the government owing to the vagueness of the act. This concern was the basis for the Supreme Challenge in Hedges v Obama which decided in favour of the government in 2013.

The Roberts Court has failed to protect rights as outlined in the Bill of Rights. The composition of the court has a conservative bias. The Bush appointment of Alito was critical in this regard as the departure of Justice O’Connor allowed GW Bush to replace a centrist with a conservative. The above ruling and others such as Florence v Board of Chosen Freeholders 2012 allowing strip searches for any offence contrary to privacy rights established under the fourth amendment, Wal-mart v Dukes 2011 which prevented a case to prove sex discrimination contrary to equal protection 14^th amendment rights and Baze v Rees which allowed lethal injunction contrary to 8^th amendment rights which prevent “cruel and unusual” punishments.

The situation on Guantánamo also shows rights are not adequately protected. Due process Fifth Amendment rights, 6^th amendment rights to a lawyer and 7^th amendment rights to a speedy trial as well torture via waterboarding in violation of the 8^th amendment have all clearly been violated in the name of national security. Many of the c160 detained have been cleared for release but are still detained. Only 3 have had a military commission’s trial. The “rule of law” via the Geneva Convention, the Bill of Rights and United Nations Declaration of Human Rights have not provided an adequate of protection of rights.

However this only presents a partial evaluation of a complex situation. The Supreme Court does provide an adequate protection of rights. This is true both of the past and the present. It may be case that liberals regard the Warren Court as the ultimate champion of individual rights with landmark rulings such as Brown v Board, Miranda v Arizona, Gideon v Wainwright and Mapp v Ohio. The Burger with Roe v Wade also ensured a woman’s right to choose was given constitutional protection. In the last term, it was notable that the Roberts Court was able to provide protection of individual rights in several cases such as Hosanna Tabor v EEOC (religious freedom), US V Jones (need for a warrant for GPS tracking devices under the 4^th amendment) and Maples v Thomas and Lafler v Cooper protected 6^th amendment rights to a lawyer.

The issue of Guantanamo is complex in that the problem of release is that no countries are willing to accept those released. President Obama has clearly indicated that he would like to close the prison indeed he issued an executive order to this effect as soon as he was elected. Congress has thus far prevented its closure. President Obama has also ordered the end to the use of waterboarding.

Pressure groups have also provided a level of scrutiny which ensures rights are protected. The ACLU have been to the fore in defending free speech presenting cases and amicus curiae briefs to the Supreme Court in cases such as ACLU v Reno. Other groups such as Human Rights Watch and Amnesty International monitor the situation on GITMO closely. NOW help ensure women’s rights are protected and the NAACP and La Raza protect the rights of minority groups.

The headline case of NFIB v Sebelius was evidence of the Court protecting social rights with regard to healthcare. In times of national security threats however the rights of the majority to protection may result in individual rights being ignored. The internment of Japanese Americans in World War II following Korematsu v US would suggest this is a regular phenomenon. In the longer term, these violations are likely to be addressed. The Supreme Court in Hamdi V Rumsfeld, Hamdan v Rumsfeld and Boumediene v Bush responded to the plight of those held at GITMO and forced the Bush administration to adopt different procedures. The fact though that these rights can be so easily ignored does suggest that rights are not adequately protected. They be more than “paper rights” i.e. rights which only exist on paper but not in practice, but that is not to say that they are adequately protected. 

The continuation of the usurpation of rights due to the “War on Terror”

Despite the regime change at home with the election of President Obama in 2008, there has been scant sign of any relaxation of the government controls designed to improve national security. Indeed many would argue that they continue to be undermined by:

1. Secret surveillance of US citizens has been increased by the National Security Agency.
2. More government documents have been classified. In 2011 these amounted to 92m compared to 76m in 2010.
3. Whistle-blowers have faced a government crackdown with increased use of the obscure Espionage Act which dates from World War I.
4. Congress sanctioned an extension of phone tapping without a warrant until 2017.
5. Prosecutions by military tribunals rather than civilian courts.
6. The continuation use of renditions by the CIA and the failure to close Guantánamo Bay detention centre which it is argued amounts to “the fundamental civil liberties issue of our time.”^[1]
7. An expanded definition of a terrorist without recourse to the legal process (National Defense Authorization Act 2012).

The detention of suspected terrorists at Guatánamo Bay (GITMO) and developments since 9/11such as the Patriot Act,  provide an interesting case study of the how rights may be subject to abuse and of the roles played by various political institutions.

With regard to the rights that are “in play” with regard to the detention of these prisoners, these include:

1. Habeas corpus rights
2. The right to a fair trial
3. The right to a lawyer
4. Freedom from torture

Under the terms of the US Constitution, the 6^th, 7^th and 8^th amendments would seem to have been disregarded.

In order to aid analysis of the roles played by the three branches of government, the following sections look at each branch in turn.

THE PRESIDENCY

The presidency has a key role to play in protecting rights and liberties in his capacity as “legislator in chief”. The president can propose Congress adopts certain pieces of legislation and use his position to help ensure their passage. Given the lack of leadership and party unity in the Congress, the presidency can play a vital role in this regard. The present issue of gun control provides a case in point. From a rights perspective, it could be argued that President Obama is using the “bully pulpit” of the presidency to restrict the right to bear arms.

President Bush argued that those held were not prisoners of war but enemy combatants. If they were classed as the former, they would have been subject to treatment as established under the Geneva Convention.

President Obama pledged to close the camp during the 2008 presidential campaign and when he elected he signed an executive order for the camp to be closed within a year.

President Obama signed the Defense Authorization Bill (see below) but pledged to repeal it. He made a similar commitment with regard to Congress’ refusal to allocate funds in 2011.

President Obama has authorised the use of military trials and continued detention without trial in an attempt to speed up the process of dealing with those held.

With regard to prisoners being held on Guantánamo, it would be fair to say that President Obama’s attempts to close the prison have been thwarted by the Congress.

Water-boarding and other “enhanced interrogation techniques” were used on Al Qaeda suspects although President Bush issued an executive order banning the use of torture in 2007. There was a question though of whether water-boarding amounted to torture. Vice President Cheney has claimed that the technique had produced several key pieces of intelligence.

Congress passed a bill in 2008 that banned waterboarding and other harsh interrogation methods, the Intelligence Authorization Act for Fiscal Year 2008. President Bush vetoed the legislation. His veto applied to the authorization for the entire intelligence budget for the 2008 fiscal year, but he cited the waterboarding ban as the reason for the veto. Supporters of the bill lacked enough votes to overturn the veto.  

President Obama also banned the use of torture when elected in 2009. Unlike the Bush administration though, there was no semantic wordplay as to what constitutes torture. President Obama was clear this included the use of waterboarding.

On the other hand though, President Obama signed an extension of the Patriot Act in 2011 (see the section on Congress) which suggests that he has less concern with regard to privacy rights and the fourth amendment.

Similar concerns were raised when President Obama approved the National Defense Authorisation Act 2012.The act allows US citizens to be detained indefinitely without charge or trial.  The Obama administration even went as far as successfully seeking to overturn a lower court decision that granted a permanent injunction against that part of the bill. Critics suggest that the act is similar to the internment (detention without trial ) of Japanese Americans during World War II.(Korematsu v US 1944)

THE LEGISLATURE

With a Republican Congress after the midterms of 2002, President Bush had a willing partner in securing the continued detention trial of those held on GITMO.

Congress passed the Military Commissions Act 2006 which established military tribunals to determine enemy combatant status without using civilian courts.

Similarly, the Defense Authorization Bill 2011and 2012 prevent the transfer of Guantánamo prisoners to prisons on the mainland and to other foreign countries.

These restrictions were further enhanced when Congress used the “power of the purse” to insist that no federal funds be used for such transfers.

As mentioned above, it would seem that it has been the legislature rather than the executive, the Congress rather than the president, which has failed to respect the rights of those held on Guatánamo.

In 2011, Congress passed a four year extension of the Patriot Act. The act contains sweeping powers relating to surveillance. The ACLU objected to:

1.  Investigations without showing reasonable suspicion to obtain a warrant.

2.  Similarly warrantless wiretaps do not identify the person or the facility to be tapped.

3.  The “Lone Wolf” provision of the Intelligence Reform and Terrorism Act 2004 allows secret supervision of non-US persons who are not affiliated with a foreign organisation.

4.  National Security Letters (NSLs) allow the government to obtain communication, financial and credit records of anyone deemed relevant to a terrorist investigation.

When the act was first passed in 2001, it was rushed through the Congress achieving votes of:

  357 - 66 in the House of Representatives and 98 -1 in the Senate

Most had not read the bill. The bill was renewed in 2005 and 2011 and is due to expire in 2015.

THE JUDICIARY

The Supreme Court ruled however in Hamdi v Rumsfeld 2004 that there was a need to establish whether those held were enemy combatants.

Similarly in Hamdan v Rumsfeld 2006 the Court held that the tribunals established to determine enemy combatant status were also invalid.

Boumediene v Bush 2008 established the fact that those held on Guantánamo were entitled to the protection of the US Constitution.

The Supreme Court though has not ruled on the Patriot Act. This can be explained by the facts that;

1.  As an appellate court, it must wait for cases to come before it. As yet no part of the Act has been successfully challenged in a lower court.

2.  Previous rulings such as US v Katz 1967 have limited applicability and were not related to issues of national security.

3.  The Constitution does charge the federal government with the task of providing for the common defence of the nation.

The Supreme Court also failed to support the plaintiffs opposed to the National Defense Authorisation Act 2012 in Hedges v Obama 2013. This means that indefinite detention of US citizens without trial is a possibility and there are also concerns about first amendment free speech rights as the act is vague about what constitutes giving support to Al Qaeda.

PRESSURE GROUPS

  It would seem that the president as commander in chief and the legislature may be tempted to place national security above individual human rights. It then falls upon the judiciary to ensure that rights outlined in the bill of rights are applied.

  In the same vein, pressure groups lead the way with regard to the close scrutiny of government. With regard to the treatment of prisoners at GITMO, three main pressure groups have been to the fore:

1.  The American Civil Liberties Union

2.  Human Rights Watch

3.  Amnesty International

Pressure groups have a vital role to play as alone the three branches of government may be unable to offer an adequate protection of rights of liberties. As James Madison one of the Founding Fathers declared “If men were angels, no government would be necessary”, however it would seem that government too needs to be checked.

SUMMARY

The existence of a bill of rights does not mean that it will necessary be enforced. Segregation provides a clear illustration of this point from the recent past in the USA. The fact also remains that despite the Boumediene ruling above; many prisoners still remain on Guantánamo with no prospect of release.

GITMO: TODAY

As of January 2013:

·  There were 166 prisoners on GITMO,

·  3 of whom were serving sentences after military commissions.

·  86 of these prisoners were cleared for release by the government in 2009.

·  The USA claims that it lacks the evidence to prosecute 46 of those held but that they are too dangerous to be released.

·  According to the government 92% of those held were never Al Qaeda fighters

·  The youngest prisoner held was aged 13, the eldest 98

·  Only 5% were captured by US troops, the rest were handed over for money paid by the USA.

·  Only 1 prisoner had been transferred for prosecution in a federal court.

There has been a hunger strike recently with estimates as high as 130 of the 166 held refusing to eat. Some are being force fed. These prisoners have been held for more than a decade with no end in sight to their plight. Can you imagine the despair of the 86 who have been cleared for release still to find that no country is willing to accept them? There have been a number of suicides in the prison.

It would seem that when the situation arises, the government is able to ignore individual liberties. Rights may exist and commitments might be made to international treaties and organisations such as the Geneva Conventions and the United Nations Declaration of Human Rights, however, governments it would seem may choose to ignore these when it so chooses. It could be argued that the rights are nothing more than “paper rights” in that they exist on paper but they are not enforced in practice.

Clearly events such as 9/11, the Oklahoma bombing and the Boston marathon bombs help create a climate in which a climate of fear can (legitimately?) prevail which may see civil liberties drastically curtailed.

Given these circumstances, the old adage of

"Eternal vigilance is the price of liberty." (Wendell Phillips)

would seem to ring true. In order to secure an adequate protection of rights and liberties, there is a need to create a rights culture in which rights are respected by all and that all branches of the government, the public, pressure groups and the media, work either together or independently in order to ensure rights are not violated.

One parting thought from the sage of the American Revolution