'There Is No Law'

"You are in a place where there is no law--we are the law." That's what US military intelligence officers told Hadj Boudella, a Guantánamo detainee, according to his lawyer, Robert Kirsch. On February 20 a divided federal circuit court in Washington, DC, appeared to back the views of the intelligence officers. It ruled that the 2006 Military Commissions Act had eliminated habeas corpus jurisdiction over lawsuits by Guantánamo detainees and that the Constitution requires no judicial review, even if the detainees are held there for the rest of their lives. If the 2-to-1 decision is affirmed by the Supreme Court, all pending lawsuits regarding the indefinite detention of "enemy combatants" at Guantánamo will be dismissed.

The DC Circuit found no support for their result in the text of the Constitution. After all, the Fifth Amendment bars government from depriving all "persons" of liberty without due process of law; and surely, even if they have been labeled the "worst of the worst," the Guantánamo detainees are still "persons." And Article I of the Constitution permits Congress to suspend the writ of habeas corpus--the common law avenue for obtaining court review of detention--only in times of rebellion or invasion, neither of which we are now experiencing.

In the circuit court's view, however, these fundamental rights of due process and habeas corpus simply don't apply to foreign nationals held outside US territory. Had the military taken its prisoners to a base in Florida, the detainees would be entitled to constitutional protection. But because they are kept offshore, on land technically belonging to Cuba but over which the United States exercises complete jurisdiction and control, they are without any constitutional rights. The court found no evidence that when the Constitution was adopted in 1789, the English common law writ of habeas corpus was available to foreign nationals held outside the British Empire, and ruled that therefore the Constitution does not preclude Congress from stripping Guantánamo detainees of all habeas corpus review today.

The court's reasoning is fundamentally flawed. As a historical matter, the court cites no cases that actually preclude habeas review for foreign nationals held outside the British Empire. It simply notes that in the decisions it found that extended habeas review to foreign nationals, the detainees happened to be held inside the British Empire.

In any event the Supreme Court has never held that the suspension clause protects habeas corpus only as it existed in common law in 1789. Most other parts of the Constitution, including the closely related due process guarantee, are understood to have evolved over time. The DC Circuit fails to explain why habeas corpus should be frozen in time.

Most important, there is no justification in the modern era for denying those indefinitely detained by the United States access to judicial review of the legality of their detention, regardless of their national identity or where we happen to hold them. Outsourcing is an increasingly available option for government as well as private industry, but when the government exerts its sovereign authority over an individual, it should be accountable to the legal limits that constrain that authority, wherever it acts. Notions of territoriality once played an important role in the reach of domestic law. But that has become less and less true as the world has shrunk, nations are increasingly able to exert power far from home, and the world community has recognized that fundamental rights are owed to all human beings by virtue of their human dignity, regardless of their passport.

Writing of the critical importance of habeas corpus, Alexander Hamilton argued in The Federalist that the state's authority to detain may be even more dangerous than the power to take human life. Hamilton wrote, quoting William Blackstone, the pre-eminent scholar of English common law:

To bereave a man of life (says he), or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

Hamilton had it right. George W. Bush, the Republican Congress and the DC Circuit got it wrong. Now it is up to the Supreme Court or the Democratic Congress to affirm that we are willing to abide by law, especially when it comes to the most vulnerable among us.

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