It is also important to understand that suspected terrorists who may be in the United States illegally can be detained within the criminal justice system using at least the following four options: One, they can be charged with a Federal or State crime and held; two, they can be held for violating immigration laws; three, they can be held as material witnesses as part of Federal grand jury proceedings; and, four, they can be held under section 412 of the PATRIOT Act for up to 6 months. I wish to be very clear about what this amendment is and what it is not about. It is not about whether citizens such as Hamdi and Padilla or others who would do us harm should be captured, interrogated, incarcerated, and severely punished. They should be. But what about an innocent American? What about someone in the wrong place at the wrong time with the wrong skin color? The beauty of our Constitution is that it gives everyone in the United States basic due process rights to a trial by a jury of their peers. That is what makes this Nation great. As Justice Sandra Day O'Connor wrote for the plurality in Hamdi v. Rumsfeld: As critical as the Government's interests may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.…
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