Nadeau 1

State University of New York at New Paltz

Rights or Renditions:

A QUANTITATIVE ANALYSIS OF DUE PROCESS PROTECTIONS AND POLITICAL

PARTISANSHIP IN THE UNITED STATES AND EUROPEAN UNION

Submitted in Partial Fulfillment of the Requirements for the Degree of Bachelor of Arts in Political Science

Martina Nadeau

POL 401 – Seminar in American Government and Politics

May 2016

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Abstract:

This paper presents how political partisanship and ideologies affect the civil liberties, and

particularly, due process protections that are received by terror suspects during times of national

security crises in both the United States and European Union. Taking into context the terror attacks

of September 11, 2001, and the London Bombings on July 7, 2005, this paper analyzes how

legislators react to terror attacks with respect to their political ideology. Due process protections

are a fundamental human right and a violation of these protections is virtually undemocratic. This

paper serves to critique the responses to the War on Terror that limit due process protections and

the right to file habeas corpus petitions in spite of constitutional provisions.

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Introduction:

Political scientists and humanitarians argue that the most critical protections and safeguards

for preventative detention are drawn from the Fourth Geneva Convention. “These protections,

which are recognized as sufficient due process for detained suspects, include: (1) immediate

review of detention by the state, (2) the ability of the detainee to appeal the detention decision

(habeas or judicial review), (3) periodic review of continued detention, and (4) release of the

detainee when reasons for his detention have ceased.”1 This baseline ensures that states adopting

security-based preventative detention policies enforce a fair balance between national security and

personal liberty, granting sufficient due process protections which guarantee that “legal

proceedings will be fair and will provide an opportunity to be heard before the government acts to

deprive one of life, liberty, or property.”2

Many preventative detention systems do not fulfill all of these basic protections despite the

fact that they are recognized as fundamental human rights stipulations in international law, treaties,

and covenants. Because democracies put a heavy emphasis on checks and balances, they are

typically considered the regimes most likely to grant due process protections upheld in

constitutions and legal codes. Comparatively, autocratic societies are not expected to adhere to the

civil liberties defined in international law because the authority of the head of state is rarely in

check or in question. However, even in democratic societies, “this fundamental human right is

violated by practices of indefinite detention in circumstances that do not allow for habeas review

or termination of detention.”3 Consequently, the democratic rule of law and power of constitutions

are eroded alongside the preservation of civil liberties. It is vital to explore the conditions under

1 Harvard College BA Honors Thesis, pg 7. 2 Ibid. 3 Ibid.

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which democracies lapse and deprive terror suspects and detainees of certain civil liberties during

national security crises.

Considering the current terror threats of ISIS worldwide and the Obama administration’s

announced plan to close Guantanamo Bay, studying national security has significant real world

implications. The sharp incline of global terrorism calls for states to create preventative detention

systems through a legal framework that ensures sufficient due process protections. As more and

more individuals are detained for purely security reasons, the due process protections of innocent

people are being violated. Studying national security law in relation to terrorism contributes to

understanding how political structures and party partisanship impact human rights and civil

liberties within the context of policymaking in security-based dilemmas.

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Literature Review:

The debate over why some states afford detained individuals greater due process

protections than others in the midst of combating terrorism has been largely characterized by two

major components: (1) the political institutions and structure of a democracy, (2) the social

construction of the law. Both components are vital in examining the bridges and gaps in

international law that essentially governs the rights of defendants in times of emergency.

Many political scientists argue that in order to understand the great variation of due process

protections among states, we must look to (1) the political structure of institutions within specific

democracies. In the United States, the presidential democracy uses a pure separation of powers

system. Amid a security crisis, “the executive typically asserts authority during emergencies in a

separation of powers system, and with realist views in mind, state survival is the top priority during

all legitimate security crises.”4 Because the executive implements preventative detention policies

that will benefit the most people collectively, or the survival of the state, due process protections

for terror suspects are extraordinarily limited. The independence of each institutional branch and

lag of institutional processes make checks and constraints on extralegal executive authority ex post

facto.5 Essentially, the pace of checks and balances would change the legal consequences of the

current due process protections after protections were already insufficient and violated. Because

due process protections should also begin immediately after detainment, it is nearly impossible for

the checks on the executive to restore due process protections after they have already been

sufficiently limited or denied after becoming entrenched within the system. In the United Kingdom,

the parliamentary democracy is equivalent to a pure fusion of powers system, “where the executive

4 Harvard College BA Honors Thesis, pg 10. 5 Ibid.

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and legislative branches of government are intermingled and legislative power is shared between

the two, the executive cannot make unilateral and independent policies.”6 In a pure fusion of

powers system, the executive is required to consult with the legislature extensively in order to

create policy. In a pure fusion of powers system, there exists virtually no way for there to be a

deadlock in the manner that can sometimes occur where the legislature and executive are separated.

Due to the range of voices that are made apparent and the constant communication required in the

decision making process of a pure fusion system, due process protections are less likely to be

granted at times of emergency.7

The extent to which major international human rights treaties and other sources of

customary international law allow states to derogate from their international obligations with

respect to due process is also limited by (2) the social construction of these statutes and the

perception of threat to national security. In the periods between war and normalcy, the social

construction of standards developed by international courts are vital to understanding why due

process protections are or are not granted during times of emergency? The perception of threat

influences how policymakers in congress and in parliament weigh the importance of civil liberties

monitored by human rights law in comparison to national security. Should the state uphold the

civil liberties stipulated in constitutions, legal codes, and common law that make up the

foundations of democratic society? Or should due process protections be limited as to protect the

greater good and enforce national security? When threat is high, it is expected that states with

preventative detention will offer far less due process protections. Conversely, when threat declines,

it is more likely that sufficient due process protections will be granted, “explaining the justification

6 Linz, Juan. “The Perils of Presidentialism.” Journal of Democracy 1 No. 1(1990): 51-69. 7 Pati, Roza. 2010. “Due Process and International Terrorism: An International Legal Analysis.” Leiden, Boston:

Martinus Nijhoff Publishers. Political Science Complete: EBSCOhost (accessed April 2, 2016).

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of extra-legal executive authority during emergency situations.”8 However, because it is difficult

to measure threat levels and their duration, the argument that a heightened sense of threat causes

insufficient due process protections is nearly impossible to quantify. It is difficult to conclude that

due process protections are limited because of how different executive authorities and politicians

perceive threats. In addition, “the realist construction of threat perception does not explain why

Britain punished foreign nationals with indefinite detention after the September 11 attacks, but not

after the London bombings, where Britain would have been presumably under a greater threat.”9

Current procedures often still fail to guarantee that individuals suspected of involvement

in terrorist activity or breach of national security law are treated in a fair and impartial manner by

all democratic societies. The breadth of the political spectrum provides a wealth of opinions for

evaluating commonalities and divergences in partisanship.10 Recognizing the challenges faced by

governments and executives that seek to protect their nation from acts of terrorism concurrently

attempting to respect the fundamental human rights of suspects, researchers err in acknowledging

whether or not there is a correlation between the lack of these due process protections granted and

the political party in power at the time of immediate threat, which this paper serves to analyze and

explore.

8 Harvard College BA Honors Thesis, pg 8. 9 Blum, Stephanie. “Preventive Detention in the War on Terror: Comparison of How the U.S., Britain, and Israel Detain and Incapacitate Terrorist Suspects,” Homeland Security Affairs 3 (2008):1-30. 10Marcus, George E. and Michael B. MacKuen. "Emotions and Politics: The Dynamic Functions of Emotionality," in

Citizens and Politics: Perspectives from Political Psychology. Ed. James H. Kuklinski. New York: Cambridge University Press, 2001

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Background:

Immediately following the devastating terrorist attacks that took place on September 11,

2001, the Bush Administration proclaimed a “War on Terrorism.”11 Under Bush, executive power

was enhanced in light of immediate national security threats, and counterterrorism policies were

enacted that would expand the executive authority to detain terror suspects indefinitely in order to

prevent suspects from participating in another terror act. In addition, the Central Intelligence

Agency allegedly permitted the use of “enhanced interrogation techniques,” 12 specifically,

torturing terror suspects through the act of waterboarding, or “pouring water over a cloth that

covers the breathing passages of an immobilized captive, causing the individual to experience the

sensation of being drowned.”13

The founding fathers called for the President’s authorization to “repel sudden attacks”14

against the United States, but otherwise, Congress was to be the decision maker on whether or not

to engage in war and whether or not military force should be used abroad. “Prior to the Second

World War, presidents did not claim unilateral authority as commander in chief to engage in

military combat operations overseas.”15 However, with the onset of the Cold War and the idea that

communism posed a threat to the United States, presidents began to assert even wider war powers,

and congress deferred to presidential suggestion. Although Congress has since placed some

restraints on presidential military ambitions and exercises a tacit checking power that sends signals

11 George W. Bush: "Address to the Nation on the Terrorist Attacks," September 11, 2001. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. 12 "CIA Tactics: What Is 'enhanced Interrogation'?" BBC News. N.p., 10 Dec. 2014. Web. 04 May 2016. 13 Ibid. 14 Francis D. Wormuth and Edwin B. Firmage, To Chain the Dog of War: The War Powers of Congress in History and

Law, 2nd ed. (Urbana, IL: University of Illinois Press, 1989). 15 Hendrickson, Ryan. “Clinton, Bush, Congress and War Powers: A Comparative Analysis of the Military Strikes on Iraq and Bin Laden. Eastern Illinois University.

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and different options to the president it seems clear that the War Powers Resolution has proved to

have a limited checking influence on the president.”16

Senate Joint Resolution 23, passed on September 14, 2001, reads that “the President is

authorized to use all necessary and appropriate force against those nations, organizations, or

persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred

on September 11, 2001, or harbored such organizations or persons, in order to prevent any future

acts of international terrorism against the United States by such organizations or persons.”17 Only

one member of Congress voted against the resolution (Barbara Lee, D-Ca). The Bush

Administration, taking S.J.Res23 seemingly quite literally, implemented enhanced interrogation

techniques and used the practice of indefinite detention as a “necessary force” to “prevent future

acts of international terrorism.”18

President Bush proclaimed constitutional wartime powers in order to detain individuals

suspected of terror activity as an “enemy combatants.”19 In January of 2002, the administration

subsequently created a detention facility at Guantanamo Bay in Cuba to hold these “enemy

combatant” suspects indefinitely and without due process protections. Eventually, in the 2004

Supreme Court case Rasul v. Bush, the Supreme Court intervened to allow the inclusion of

minimal due process, holding that “U.S. courts have jurisdiction pursuant to 28 U.S.C. § 2241 to

hear legal challenges on behalf of persons detained at the U.S. Naval Station in Guantanamo Bay,

16 Hendrickson, Ryan. “Clinton, Bush, Congress and War Powers: A Comparative Analysis of the Military Strikes on Iraq and Bin Laden. Eastern Illinois University. 17 Grimmett, Richard F. Authorization for Use of Military Force in Response to the 9/11 Attacks (P.L. 107-40)

Legislative History. Washington, D.C.: Congressional Research Service, Library of Congress, 2006. Authorization for the Use of Military Force in Response to the 9/11 Attacks: Legislative History. CRS Report for Congress, 16 Jan. 2007. Web. 28 Apr. 2016. 18 S.J. Res 23. 19 Kate, Martin, and Onek Joe. ""Enemy Combatants," The Constitution and the Administration's "War on Terror"" “Enemy Combatants,” The Constitution and the Administration’s “War on Terror” (n.d.): n. pag. American Constitution Society for Law and Policy. Aug. 2004. Web.

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Cuba, in connection with the war against terrorism.”20 However, indefinite detention was still

present.

The Pentagon established administrative hearings, called “Combatant Status Review

Tribunals” (CSRTs), to allow the detainees to contest their status as enemy combatants, and

informed them of their right to pursue relief in federal court by seeking a writ of habeas corpus.21

Congress subsequently passed the Detainee Treatment Act of 2005 (DTA). The Detainee

Treatment Act essentially limited CSRT appeals. “After the Supreme Court rejected the idea that

the Detainee Treatment Act left it without jurisdiction to review a habeas challenge to the validity

of military commissions in the case of Hamdan v. Rumsfeld (2006), Congress enacted the Military

Commissions Act of 2006 which amended the Detainee Treatment Act to further reduce detainees’

access to federal courts.”22

In Boumediene v. Bush (2008) the Supreme Court held that that “aliens designated as

enemy combatants and detained at Guantanamo Bay DO have the constitutional privilege of

habeas corpus.” 23 The Court also found that the limited judicial review of executive

determinations of the petitioners’ enemy combatant status was an unconstitutional suspension of

the writ of habeas corpus. The impact of the Bourmediene decision allowed for detainees at

Guantanamo to petition a federal district court for habeas review of the legality of their

imprisonment and circumstances of their detention.

20 Elsea, Jennifer K., and Michael J. Garcia. "Enemy Combatant Detainees." Congressional Research Service RL33180 (2010): 1-54. Nova Science Publishers, 3 Feb. 2010. Web. 14 Apr. 2016. 21 Ibid. 22 Ibid. 23 Garcia, Michael J. "Boumediene v. Bush: Guantanamo Detainees Right to Habeas Corpus." Congressional

Reseach Service (2008): 1-11. 8 Sept. 2008. Web. 15 Apr. 2016.

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The Bush Administration argued that “foreigners detained abroad have no right to a hearing

and can be detained indefinitely without any trial whatsoever.” 24 However, the left leaning

Supreme Court ruled against the Bush administration, 6-3, granting habeas corpus relief and a trial

and maintained that “no one may be detained without a court hearing justifying detention.”25 After

President Bush left office, detainees had gained limited due process protections, but were still

being held indefinitely at Guantanamo Bay.26

24 Eddlem, Thomas. "Military Commissions: Rights of Accused Terrorists Under Bush, Obama." Military

Commissions: Rights of Accused Terrorists Under Bush, Obama. The New American, 28 Sept. 2011. Web. 04 May 2016. 25 Ball, Howard. Bush, Detainees, and the Constitution. Lawrence, KS: University Press of Kansas, 2007. 26 Eddlem, Thomas. "Military Commissions: Rights of Accused Terrorists Under Bush, Obama." Military

Commissions: Rights of Accused Terrorists Under Bush, Obama. The New American, 28 Sept. 2011. Web. 04 May 2016.

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Policy Initial

Review by

State

Judicial

Review

Periodic

Review

Pre-charge

Detention

Party

Majority

Executive

Military

Order (2001)

None None None Indefinite Bush

administration

(right-wing)

Hamdi v.

Rumsfeld

(2004)

No change Required:

U.S. citizens

only

No change No change SCOTUS left-

wing majority

Rasul v. Bush

(2004)

No change Required: to

U.S. citizens

AND aliens

No change No change SCOTUS left-

wing majority

Detainee

Treatment

Act (2005)

No change Special

review of

challenges

No change No change SCOTUS left-

wing majority

Hamdan v.

Rumsfeld

(2006)

No change DTA did not

prevent

habeas

review

No change No change SCOTUS left-

wing majority

Military

Comissions

Act (2006)

No change Special

review of

challenges

Annual No change SCOTUS left-

wing majority

Boumediene

v. Bush (2008)

No change Military

Commissions

Act held

unconstitional

due to

suspension of

habeas

review

No change No change SCOTUS left-

wing majority

Table 1: Due Process Protections in the United States Post September 11, 200127

Table 1 (above) illustrates the changes that occurred in U.S. policies. Immediately after

9/11, the preventative detention system formed did not provide for any of the safeguards necessary

for due process. Years later, “safeguards were provided that included initial state review of

detainee status and periodic review of detention on an annual basis with a limited appeal to judicial

authorities.”28 Where the party majority is left wing, there are seldom changes in review and pre

27 Harvard College BA Honors Thesis, pg 19. 28 Hazuka, Margaret. "Don’t Forget Guantanamo: The Legacy of the “War on Terror”, Torture, and Indefinite

Detention." Harvard Civil Rights Civil Liberties Law Review. N.p., 4 Apr. 2016. Web. 02 May 2016.

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charge detention, however, where the party is right wing, there is a more strict adherence to

limiting due process protections.

In the wake of the London Bombings in 2005, Prime Minister Tony Blair held a press

conference where he asserted that the “rules of the game”29 for terrorists were changing. Despite

the substantive existing legislation, Blair announced the introduction of a multifaceted twelve

point legislative regime plan against terrorism that aimed to take a tougher stance against

individuals “who encourage or advocate terrorism; to disrupt the recruitment and training of

would-be terrorists; and make it more difficult for these individuals to remain in, or enter, the

UK.”30 The legislation called for revisions that would promote the extension of the period of

detention of terrorist suspects “pending the result of an examination or analysis of any relevant

evidence or of anything the examination or analysis of which is to be or is being carried out with

a view to obtaining relevant evidence.”31

After both the terrorist attacks in the United States on September 11, 2001, and the London

Bombings in 2005, the United Kingdom acted defensively and extensively prepared to enforce

national security measures by expanding the powers of the executive to “permit detainment of

foreign nationals indefinitely without full due process.” 32 After three years, the policy was

eventually struck down and replaced with executive control orders, which allow obligations,

prohibitions, and restrictions to be imposed upon a person for the purpose of protecting the public

from an anticipated or suspected terrorist act. These types of obligations, prohibitions, and

restrictions may include but are not limited to imposing a curfew, wearing of an electronic

29 Lennon, Genevieve, and Clive Walker. Routledge Handbook of Law and Terrorism. New York: Routledge: Taylor & Francis Group, 2015. Print. 30 Lennon, Genevieve, and Clive Walker. Routledge Handbook of Law and Terrorism. New York: Routledge: Taylor & Francis Group, 2015. Print. 31 "Terrorism Act 2006." Legislation.gov.uk. The National Archives, 2006. Web. 5 May 2016. 32 Harvard College BA Honors Thesis, pg 22.

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monitoring tag, restricting use of telecommunications, and regular reporting to law enforcement

agents.33 Despite the increased surveillance and decrease in privacy for detained terror suspects,

the executive control orders have created the permission of sufficient due process protections.

Policy Initial

Review

by State

Judicial

Review

Periodic

Review

Pre-charge

Detention

Party Majority

Prevention of

Terrorism Act

(2005)

Upon

arrest

with

control

order

After 7 days Annual 12 month

max.

Blair

administration

(left-wing)

Terrorism Act

(2006)

No

change

No change No change 28 day max. Blair

administration

(left-wing)

Secretary of State

v. MB

No

change

After 7 days No change No change Conservative/right

wing majority

Counterterrorism

Bill (2008)

No

change

No change No change 42 day max. Blair

administration

(left-wing) Table 2: Due Process Protections in the United Kingdom Post London Bombings, July 5, 200534

In the United Kingdom (see table 2 above), the executive used a security based immigration

framework in order to detain non-citizen terror suspects after the heightened perception of threat

post 9/11, however, the judiciary almost immediately struck it down.35 The left leaning Blair

administration was required to consult with the legislature to derive a new detention policy. “The

interaction and communication between the executive and legislature resulted in constraints on

executive preference and concurrently gave parliament a voice in deciding which legal framework

was best for preventative detention.”36

33 Zedner, Linda. "Securing Liberty in the Face of Terror: Reflections from Criminal Justice." Journal of Law and Society 32.4 (2005): 507-33. Wiley Online Library. Web. 14 Apr. 2016. 34 Harvard College BA Honors Thesis, pg 21. 35 Blum, Gabriella and Philip B. Heymann, Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism.

Cambridge: The MIT Press, 2010. 36 Harvard College BA Honors Thesis, pg 23.

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Theory:

There are statistical differences when analyzing general party attitudes toward granting full

due process to terror suspects. Partisan differences vary and there are comparable percentages of

Republicans (15%) and Democrats (12%) that believe that severe limits on due process protections

of suspected terrorists to gain important information is often justified, but twice as many

Republicans as Democrats say this denial of protections is sometimes justified (49% vs. 24%).37

Similarly, while nearly identical percentages of Republicans and Democrats say dismissal of due

process under these circumstances is rarely justified, 38% of Democrats believe that due process

and/or torture of suspected terrorists is never justified, compared with 14% of Republicans.38

In the United States, a consistent majority of Republicans have been opposed to closing

the prison at Guantanamo Bay, with only 8% supporting Obama’s pledge to close the facility in

2009, whereas 41% of democratic partisans support the idea and exhibited a negative attitude

toward the detention policies and due process in Guantanamo.39

37 Drake, Bruce. "Americans' Views on Use of Torture in Fighting Terrorism Have Been Mixed." Pew Research Center RSS. 09 Dec. 2014. Web. 04 May 2016. 38 Ibid. 39 Ibid.

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Image 1: Partisanship and the Constitution40

There is a longstanding belief that Republicans view the Constitution by its original intent,

and that the constitution should be evaluated and adhered to in an attempt to ascertain the meaning

of how the provision was understood at the time it was drafted and ratified (see Image 1 above).

Democrats, on the other hand, are more likely to view the constitution as a living document,

meaning that the Constitution is dynamic and has the properties of an animate being in the sense

that it changes over time and develops to fit the modern era. Likewise, corresponding ideologies

40 Kiley, Jocelyn. "Americans Divided on How the Supreme Court Should Interpret the Constitution." Pew Research Center RSS. N.p., 31 July 2014. Web. 13 May 2016.

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show an even greater conformity to these beliefs. The right wing thinkers contest this idea because

it undermines the key limitations on government power that are written into the Constitution itself.

The common perception of ideological beliefs correlating to interpretation of the

constitution challenges the traditional concept of ideology correlating to policies surrounding

national security. With right wing thinkers and traditional conservatives (in terms of United States

ideology) being more supportive of originalism in interpreting the constitution, Republicans would

be more likely to uphold the constitutional protections of due process as outlined in the fifth

amendment, “nor shall any person… be deprived of life, liberty, or property, without due process

of the law,”41 and habeas corpus in the second clause of section 9 in the first article of the

constitution. Conversely, those viewing the Constitution as a living document would be opposed

to these civil liberties because in the midst of terror, the Constitution should morph to respond to

the immediate threat in order to protect the greater good and in turn limit due process protections

and the right to petition for habeas corpus.

Despite the fact that the European Parliament is a multi-party system, the parties have a

clear division between the left and the right that are comparably similar to the partisan values

defined in the democratic and republican party-ideology in the United States. Following the

premise that right wing parties share many of the same policy goals as U.S. republicans, and left

wing parties in Parliament share many of the same policy goals as democrats, it is likely that

partisanship affects attitudes toward due process protections in Europe, too.

41 US Const. amend. V

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Hypothesis: The partisanship of the party evaluating the laws regarding preventative

detention policies directly correlates to the amount of due process protections granted

toward terror suspects.

H1: When Republicans or right wing thinkers evaluate the rule of law surrounding

preventative detention under threat of national security, policymakers are more likely to

oppose granting full civil liberties, and thus, terror suspects will receive limited due process

protections.

H2: When Democrats or leftist politicians evaluate preventative detention policies,

politicians look more favorably to upholding due process protections for noncitizens, and

thus, terror suspects are granted sufficient due process protections.

Dependent variable: Due process protections granted for terror suspects.

D1: Due process protections granted for terror suspects in the United States post September

11, 2001.

D2: Due process protections granted for terror suspects in the United Kingdom post

London Bombings, July 7, 2005.

Independent variable: Partisanship of political parties.

I1: Partisanship of political parties in the executive, legislative, and judicial in the United

States.

I2: Partisanship of political parties in the executive, legislative, and judicial in the United

Kingdom.

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Research Design:

Using a data set that provides Roll Call Votes for the United States House of

Representatives on the Military Commissions Act of 2006, I identified each representative by their

respective party and created a cross tabulation to analyze whether or not their party ideology

affected the way in which they voted.

Table 3: Party and Support for Limiting Habeas Corpus

Vote on Military Commissions Act Party

Democratic Republican Total

No 162 (84%) 7 (3%) 169 (40%)

Yes 32 (16%) 218 (97%) 250 (60%)

Total 194 225 419 Somers’ d = .804 p =.000 Roll Call Vote 508, September 29, 2006. 1 Independent (Sanders) voted no.

Table 3: Crosstabulation of United States Party Ideology in House of Representatives and Roll Call Vote on

Military Commissions Act of 2006

With a large majority of democrats voting against the Military Commissions Act of 2006, and a

large majority of republicans voting in favor of the Military Commissions Act of 2006, there is a

clear relationship between party support or opposition for civil liberties and habeas corpus. Somers’

d was equal to .804, suggesting a positive association between partisanship and the ways in which

each representative voted, and p =.000, suggesting a statistical significance.

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Using a data set that provides Roll Call Votes in the European Parliament, I pulled out the

EPG, or European Parliamentary Group along with each party’s roll call vote (yays, nays, and

abstentions) for “transport and illegal detention of prisoners” in the policy area of “civil liberties,

justice, and home affairs.”42 I proceeded to analyze policy goals of different European Parliament

groups and used a chart to determine which parties in the European Parliament leaned “left” and

which leaned “right,” following the rhetoric of American left wing/right wing political party-

ideologies.

Image 2: Partisanship of Members in European Parliament43

42 Simon Hix, London School of Economics and Political Science; Abdul Noury, New York University; Gerard Roland,

University of California, Berkeley: “Democratic Politics in the European Parliament.” 43 "Guide to the European Parliament: Party Groups." BBC News. N.p., 13 Feb. 2014. Web. 25 Apr. 2016.

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After determining which parties in the European Parliament leaned which way in terms of how

America characterizes its two party system, I designated each party an “ideology” and coded them

as such:

SPSS Syntax.

if (epg_name="ALDE") LCR=0.

if (epg_name="EPP-ED") LCR=0.

if (epg_name="IND/DEM") LCR=0.

if (epg_name="UEN") LCR=0.

if (epg_name="SOC") LCR=1.

if (epg_name="EUL/NGL") LCR=1.

if (epg_name="G/EFA") LCR=1.

variable label LCR 'EP Ideology'.

value labels LCR

0 Right

1 Left

For those who designated their roll call votes as “no,” due process protections should not

be granted, I coded the vote as -1. For those members in parliament (MPs) voting for greater due

process protections, I coded the vote as 1. Those abstaining are recognized as 0.

SPSS Syntax.

recode rollcallvote2390 (1=1) (2=-1) (3=0) (else=sysmis) into Vote.

value labels Vote

-1 No

0 Abstain

1 Yes

.

frequencies Vote.

CROSSTABS

/TABLES=Vote BY LCR

/FORMAT=AVALUE TABLES

/STATISTICS=D

/CELLS=COUNT COLUMN

/COUNT ROUND CELL.

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I then proceeded to enter the data into SPSS to generate a cross tabulation contingency table to

analyze the joint frequency distribution of the cases based on the categorical variables.

Roll Call Vote on Civil Liberties and Due Process Crosstabulation

Vote * EP Party Ideology Crosstabulation

EP Ideology

Total Right Left

Vote No Count 247 3 250

% within EP Ideology 60.8% 1.1% 36.4%

Abstain Count 49 11 60

% within EP Ideology 12.1% 3.9% 8.7%

Yes Count 110 266 376

% within EP Ideology 27.1% 95.0% 54.8%

Total Count 406 280 686

% within EP Ideology 100.0% 100.0% 100.0%

Table 4: Crosstabulation of European Party Ideology and Roll Call Vote on Civil Liberties & Due Process

While setting up the cross tabulation, I selected Somers’d to measure the strength and direction of

association that exists between the European Parliament Ideology (partisanship) and the roll call

vote.

Directional Measures

Value

Asymptotic

Standardized

Errora

Approxima

te Tb

Approximate

Significance

Ordinal

by

Ordinal

Somers' d Symmetric .651 .022 26.811 .000

Vote Dependent .702 .024 26.811 .000

EP Ideology

Dependent .606 .023 26.811 .000

a. Not assuming the null hypothesis.

b. Using the asymptotic standard error assuming the null hypothesis. Table 5: Somers’d of European Party Ideology and Roll Call Vote on Civil Liberties & Due Process

Nadeau 23

Analysis:

When looking at the data provided by the roll call vote on the Military Commissions Act

of 2006, which “set aside the principle of habeas corpus, and gave the president absolute power to

designate enemy combatants and set his own definitions for torture,” 44 I identified each

representative as either a Republican or Democrat, and excluded those without party identifications

or those who did not vote. Eighty three percent of democrats in the house voted against the MCA

of 2006, whereas an overwhelming majority of 96.9% of republicans voted for the MCA of 2006

to pass into legislation. The 3.1%, of Republicans that voted against the Military Commissions Act

of 2006 can be attributed to the idea that those republicans tend to lean more toward the left and

favor a more moderate ideology in terms of foreign policy and war. The 16.2% of democrats voting

for the MCA of 2006, which would limit detainees’ access to federal courts and the ability to seek

a writ of habeas corpus, are largely representatives from Southern states, and can often be

considered members of the blue dog coalition, a caucus of congressional representatives that

identify as conservative democrats. As a conservative-democrat, these representatives would be

more likely to vote moderately or toward the right in particular issue areas.

In order to understand whether or not these representatives were moderate voters and

whether or not this “moderate ideology” would shift the causal relationship observed, I used the

Americans for Democratic Action evaluation ratings to analyze how some groups select votes

based less on preferences and concerns of political parties and more solely on issues concerns.

These specific tables show ratings for where incumbents have stood on a series of votes on Civil

Liberties and Civil Rights in the past few years for those representatives voting the opposite of the

majority of their respective party.

44 "Military Commissions Act of 2006." American Civil Liberties Union. N.p., n.d. Web. 05 May 2016.

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Republicans voting No and ADA Scores:

State CD Representative ADA Republican Presidential Vote

2004

1 IA 2 Jim Leach 50 44

2 OH 14 Steve LaTourette 20 53

3 MD 1 Wayne Gilchrest 40 63

4 MD 6 Roscoe Bartlett 25 66

5 TX 14 Ron Paul 45 67

6 NC 3 Walter Jones 45 68

7 KS 1 Jerry Moran 5 74 Table 6: Americans for Democratic Action Ratings for Republicans Voting Against MCA 2006

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Democrats voting Yes and ADA scores:

State CD Representative ADA Republican Presidential Vote

2004

1 GA 8 Jim Marshall 35 71

2 TX 17 Chet Edwards 55 70

3 MS 4 Gene Taylor 40 69

4 UT 2 Jim Matheson 45 68

5 ND 0 Earl Pomeroy 80 64

6 SD 0 Stephanie Herseth Sandlin 65 61

7 AL 5 Bud Cramer 50 61

8 TN 6 Bart Gordon 50 60

9 OK 2 Dan Boren 25 59

10 KY 6 Ben Chandler 60 59

11 TN 4 Lincoln Davis 35 59

12 PA 17 Tim Holden 60 58

13 SC 5 John Spratt 75 58

14 MN 7 Collin Peterson 35 56

15 IL 8 Melissa Bean 60 56

16 NC 7 Mike McIntyre 50 56

17 CO 3 John Salazar 60 56

18 KS 3 Dennis Moore 85 56

19 FL 2 Allen Boyd Jr. 50 54

20 NC 2 Bob Etheridge 80 54

21 TX 28 Henry Cuellar 35 54

22 TN 8 John Tanner 55 53

23 AR 4 Mike Ross 50 52

24 GA 12 John Barrow 45 51

25 GA 2 Sanford Bishop 65 50

26 IA 3 Leonard Boswell 70 50

27 NY 26 Brian Higgins 85 46

28 OH 13 Sherrod Brown 80 44

29 GA 13 David Scott 85 40

30 NJ 1 Rob Andrews 85 39

31 AL 7 Artur Davis 75 35

32 TN 9 Harold Ford Jr. 45 30 Table 7: Americans for Democratic Action Ratings for Democrats Voting For MCA 2006

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Overall, a large majority of the American for Democratic Action scores fall in between

what would typically be considered a far left voter and a far right voter. Having already coded a

cross tabulation for party support of the Military Commissions Act, I created a cross tabulation to

analyze the association between ideology and the support for limiting habeas corpus rights.

Table 8: Ideology and Support for Limiting Habeas Corpus

Vote on Military Commissions

Act Party

Liberal Moderate Conservative Total

No 149 (94%) 18 (34%) 3 (1%) 170 (40%)

Yes 9 (6%) 35 (66%) 206 (97%) 250 (60%)

Total 158 53 209 420

Americans for Democratic Action scores 30-70 coded as moderate.

Somers’ d = .749

p =.000

Roll Call Vote 508, September 29, 2006. Table 8: Crosstabulation for Ideology and Support for MCA2006

When coding ideology, representatives recognized as “liberal voters” sat somewhere in

between a rating of 71-100. Those who were more “un-democratic,” with a rating of 0-29 were

considered “conservative voters.” All representatives sitting between liberal and conservative

ideologies were coded as “moderates,” with an American for Democratic Action rating somewhere

in between 30-70. Overall, 94% of liberal representatives voted against the passing of the Military

Commissions Act, while an overwhelming majority of conservatives, 97%, voted in favor of the

Military Commissions Act of 2006. The 53 representatives who were categorized as having a

moderate ideology eliminates a vast majority of outliers that we see within the “party” cross

tabulation. Even so, 9 liberal voters were still found in favor of the Military Commissions Act of

2006, straying from the 94% voting against the act. In order to address this, I created another cross

Nadeau 27

tabulation, this time, coding an alternate operationalization of moderate representatives as those

with an American for Democratic Action rating of 20-80.

Table 9: Ideology and Support for Limiting Habeas Corpus

with alternate operationalization of moderate

Vote on Military Commissions

Act Party

Liberal Moderate Conservative Total

No 132 (94%) 37 (39%) 1 (1%) 170 (40%)

Yes 4 (6%) 62 (62%) 184 (99%) 250 (60%)

Total 136 99 185 420

Americans for Democratic Action scores 20-80 coded as moderate.

Somers’ d = .645

p =.000

Roll Call Vote 508, September 29, 2006. Table 9: Crosstabulation for Ideology and Support for MCA2006 Accounting Larger Range ofADA Moderate

Ratings

After increasing the moderate rating range, forty six representatives were shifted into the

“moderate” ideology. The amount of liberal voters in favor of the MCA of 2006 decreased to 4,

while the conservatives, originally at 3, decreased to 1. Overall, the voting pattern of those with a

“moderate ideology” had a somers’ d value of .645, not statistically significant, proving the point

because of the simple fact that they are indeed moderate. Most of the deviation stems from the fact

that moderates are ideologically different from both democrats and/or republicans.

With Bush carrying their state, the representatives may have voted a specific way on the

issue so as not to cause them their re-election. Essentially, another potential explanation for a

deviation in the typical party aligned voting mechanisms is that the sense of electoral risk correlates

to ideology. In order to measure whether or not ideology is associated with electoral risk, I added

an interval-level variable for the Republican share of the presidential vote in each district as a

percentage of the two major party vote (see table 6 and table 7).

Nadeau 28

Following, I created a dichotomous variable for districts carried by the opposing party’s

presidential candidate in 2004 (for Democrat’s, George Bush, for Republicans, John Kerry) as one

construction for electoral risk, and then used that variable to control the cross tabulation for party

and vote.

Table 10: Party and Support for Limiting Habeas Corpus, Controlling for Electoral Vulnerability

A. Districts carried by the Party’s Presidential Candidate in 2004

Vote on Military Commissions

Act Party

Democratic Republican Total

No 146 (96%) 6 (3%) 152 (42%)

Yes 6 (4%) 201 (97%) 207 (58%)

Total 152 225 359

Somers’ d = .932, p = .000

B. Districts carried by the Opposing Party’s Presidential Candidate in 2004

Democratic Republican Total

No 16 (38%) 1 (6%) 17 (28%)

Yes 26 (62%) 17 (94%) 43 (72%)

Total 42 18 60

Somers’ d = .325, p = .000 Table 10: Crosstabulation for Electoral Risk of Party and Support for Limiting Habeas Corpus

Ninety six percent of the 359 representatives are not at a significant electoral risk vote

with their party. However, for those at electoral risk, the 62% of Democrats and 1 Republican

break with their parties. Districts carried by the party’s candidate are not significantly affected by

electoral vulnerability, whereas districts carried by the opposing party’s presidential candidate do

face electoral risk, which may serve as a potential explanation for ideological breaks and

democratic votes for the MCA of 2006.

In analyzing how the MP’s (member in parliament) partisanship affects their roll call vote,

a majority of 60.8% of the right wing voted against the protection of civil liberties, whereas 27.1%

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voted for civil liberties. Only 12.1% of the “right wing” ideology abstained. Essentially, most

members of parliament associated with American values of “republicanism” voted against granting

due process protections and civil liberties. Contrastingly, a whopping 95.5% of those identified as

“left wing” voted in favor of due process protections and favored to uphold practices of civil

liberties, and only 1.1% voted against, with the remaining 3.9% abstaining.

The directional measures indicate that there is a direct correlation between partisanship of

European Parliament Groups and their roll call on civil liberties and due process. Overall, left

leaning parties are more likely to vote for greater due process protections, whereas right-wing

parties are more likely to vote against due process protections.

With the parliamentary roll call vote on civil liberties acting as the dependent variable, it

is clear that there is very little standardized error when looking at the directional measures (.024).

However, this error can be analyzed in two ways: (1) those parties which abstained or voted

contrary to the masses of their ideology were more “middle of the road” parties. In this case, it

could have been potentially useful to create a “center ideology” to place these parties into. It is

possible that excluding these “centrist parties” as well as their votes when analyzing the data could

have also been helpful in understanding the correlation of EP partisanship and due process

protections. The standardized error, largely in part of the right-leaning voters, can also be in

response to (2) the CIA renditions uncovered in the same year.

For the 27.1% of right leaning MPs who voted for greater due process protections and the

12.1% right leaning MPs who chose to abstain, it is possible that their votes were swayed after the

CIA renditions uncovered that “15 European countries and Turkey helped the CIA transport

terrorism suspects held in secret”45 and “failed to cooperate in the parliament’s investigation of the

45 Moore, Molly. "E.U. Report Faults 16 Nations in Probe Of Secret CIA Flights." Washington Post. The Washington Post, 15 Feb. 2007. Web. 05 May 2016.

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practice.”46 Many of the member states turned a blind eye to the CIA-operated flights that were

“abducting and interrogating terror suspects at secret sites overseas,”47 and in turn, the prisoners

were subjected to “incommunicado detention and torture during interrogations, violating E.U.

human rights standards.”48 Because the European Parliament has “admonished 11 countries for

having a role in the flights,” and there were “recommendations for sanctions against some

countries for human rights violations,” it is possible that MPs were more conscientious of how

they were voting so as not to indicate that the region they are representing has involvement with

the CIA’s extralegal tactics and should receive a sanction or face a criminal investigation.

46 Ibid. 47 Ibid. 48 Moore, Molly. "E.U. Report Faults 16 Nations in Probe Of Secret CIA Flights." Washington Post. The Washington Post, 15 Feb. 2007. Web. 05 May 2016.

Nadeau 31

Conclusion:

My initial hypothesis, “the partisanship of the party evaluating the laws regarding

preventative detention policies directly correlates to the amount of due process protections granted

toward terror suspects,” is true with limited exceptions. Hypothesis 1 predicts that when

republicans evaluate the rule of law, policymakers are more likely to oppose granting full civil

liberties, and thus, terror suspects will receive limited due process protections. After creating cross

tabulations to analyze the association between D1 and I1 (dependent variable 1 and independent

variable 1) and D2 and I2 (dependent variable 2 and independent variable 2), both data matrixes

found positive associations, indicating a clear and direct relationship between partisanship and due

process protections granted toward terror suspects in times of national security crises, specifically,

the attacks of September 11, 2001 in the United States and the London Bombings on July 7, 2005.

These findings indicate that right wing thinkers are indeed more likely to be favorable of policies

that enforce stricter national security measures and left wing thinkers are more favorable of policies

procuring greater civil liberties.

This study contributes to a substantive meaning in the context of analyzing the vast field

of national security and laws pertaining to terror suspects and foreign nationalists. It is important

to understand how partisanship affects the decisions that policymakers are in favor of and opposed

to implementing in order to anticipate the areas in which political parties will likely seek to expand

its authorities and favored interests. In turn, executives will be able to craft laws and policies that

counteract these legislative tendencies. Amid the growing threat of terror and the growing presence

of ISIS, there is an exhortative call to action to come to a consensus on how to proceed in granting

due process protections toward terror suspects while concurrently respecting the Constitution our

nation was founded on.

Nadeau 32

Glossary:

Boumediene v. Bush (2008) (United States): held that the prisoners had a right to the habeas

corpus under the United States Constitution and that the MCA of 2006 was an unconstitutional

suspension of that right.

Combatant Status Review Tribunals, CSRTs (2004) (United States): set of tribunals for

confirming whether detainees held by the United States at the Guantanamo Bay detention camp

had been correctly designated as enemy combatants.

Control Orders: restrict an individual's liberty for the purpose of "protecting members of the

public from a risk of terrorism. Can place restrictions on what the person can use or possess, their

place of work, place of residence, whom they speak to, and where they can travel. Furthermore,

the person can be ordered to surrender their passport, let the police visit their home at any time,

report to officials at a specific time and place, and allow themselves to be electronically tagged so

their movements can be tracked.

Counterterrorism Bill (2008) (European Union): increased police powers for the stated purpose

of countering terrorism, including removal of prohibition on post-charge questioning, longer

terrorism sentences, register and monitoring, changes to rules surrounding interception of evidence,

power to seize assets, police ability to remove documents from property searches to decide whether

or not they will need to be legally seized as part of an investigation.

Detainee Treatment Act, DTA (2005) (United States): Contains provisions relating to treatment

of persons in custody of the Department of Defense, and administration of detainees held in

Guantanamo Bay, Cuba, including prohibition of cruel, inhuman, or degrading treatment, requiring

military interrogations to be performed according to the U.S. Army Field Manual, directing the

Department of Defense to establish CSRTs for persons held in Guantanamo Bay, requiring that

habeas corpus appeals be per the DTA, giving immunity to government agents from civil and

criminal action for using interrogation techniques that were officially authorized and determined

to be lawful at the time they were conducted.

Detained: to hold or keep in or as if in custody (i.e. detained by the police for questioning); to

keep back, withhold.

Due Process: a fundamental, constitutional guarantee that all legal proceedings will be fair and

that one will be given notice of the proceedings and an opportunity to be heard before the

government acts to take away one’s life, liberty, or property. Also, a constitutional guarantee that

a law shall not be unreasonably, arbitrary, or capricious.

Executive Military Order (2001) (United States): executive order authorizing the creation of

military tribunals for the detention, treatment and trial of certain non-citizens in the war against

terrorism members; military tribunals shall have exclusive jurisdiction with respect to offenses by

the individuals subject to the order. Individuals subject to the order shall not be privileged to seek

remedy or maintain proceeding in any court of the United States or any State thereof, any court of

Nadeau 33

a foreign nation, or any international tribunal. When tried, an individual subject to the order shall

be tried by military commission. Sentences may include life imprisonment or death.

Extralegal: not regulated or sanctioned by law.

Habeas Corpus: a writ requiring a person under arrest to be brought before a judge or into court,

especially to secure the person’s release unless lawful grounds are shown for their detention.

Hamdan v. Rumsfeld (2006) (United States): held that military commissions set up by the Bush

administration to try detainees at Guantanamo Bay lack the power to proceed because its structures

and procedures violate both the Uniform Code of Military Justice and the four Geneva

Conventions (article 3) signed in 1949.

Indefinite Detention: the practice of detaining an arrested person by a national government or

law enforcement agency without a trial.

Military Commissions Act (2006) (United States): authorized trial by military commission for

violations of the law of war, and for other purposes. Prohibited detainees who had been classified

as enemy combatants or were awaiting hearings on their status from using habeas corpus to petition

federal courts in challenges to their detention.

Prevention of Terrorism Act (2005) (European Union): allowed the Home Secretary to impose

"control orders" on people who were suspected of involvement in terrorism, which in some cases

may have derogated (opt out) from human rights laws.

Rasul v. Bush (2004) (United States): established that the U.S. court system has the authority to

decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were wrongfully

imprisoned.

Secretary of State v. MB (2007) (European Union): articulated the minimum requirements of

disclosure that are necessary for a fair trial in control order cases. A person subject to a control

order must be given sufficient information about the allegations against him to enable him to give

effective instructions; does not have to be given the detail of the allegations or all of the supporting

evidence, but must be given a minimum level of disclosure. Where the material he is given contains

no more than general assertions, and the true case against individual is based solely, or to a decisive

degree, on closed materials, the requirements of fair trial are not satisfied.

Terrorism Act (2006) (European Union): creates new offences related to terrorism, and amends

existing ones varying from detainment of terror suspects to disseminating terrorist publications

Nadeau 34

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