Why Do Terrorists Have Rights?, Or, A Government, Restrained

There is a lot of debate in the public space this week over the impact of the United States Supreme Court’s ruling that gives detainees in a “holding pattern” at Guantanamo Bay access to the United States Courts for the purpose of presenting petitions of habeas corpus.

It is a generally accepted misunderstanding that the Court’s ruling gave new rights to the detainees, which seems to be the issue that is the most controversial.

The purpose of today’s discussion is to explain why that view of the ruling is dead wrong…and to offer some thoughts on why this ruling might actually be one of the most important “restraint of government” rulings to have come down the pike in some time.

So off we go, eh?

First, the background. The Supreme Court has ruled in Boumediene et al. V. Bush, President of the United States, et al. that some Constitutional protections do extend to “non” US territory, and that the Military Commissions Act can not restrict the US Courts from having jurisdiction over “any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.”

The Government had attempted to argue that because the Guantanamo Bay Naval Station’s holding facility is located on Cuban territory Constitutional protections do not apply, and that view was dismissed by the Court. The Court instead relied on a concept known as the “Territorial Incorporation Doctrine” which grants some, but not all, of the Constitution’s rights to those who live in US Territories…and as the Court noted, having “complete and uninterrupted control of the bay for over 100 years” pretty much makes it a US Territory, despite its physical location.

And that’s where we begin to address the question of whether this ruling gives new rights to detainees.

In reading the ruling, one thing that stands out is that the Court is not so much empowering the Plaintiffs as it is restraining the power of Government to operate outside the control of the Constitution—that the Court is saying that whatever the United States Government does, to the extent the sovereignty of other nations allows, it must do it within the framework of that document…and that despite the Administration’s desires, there is no legal basis to deny these detainees access to any judicial forum beyond the military tribunals offered by the Military Commissions Act. This from Boumediene V. Bush:

And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.”

The Court goes on to suggest that if the Government’s view were to be upheld, it would be possible for the President and Congress to interpret law. The Court says that is not allowed, and refers to one of our most fundamental legal precedents to illustrate its point. To quote the 1803 case Marbury v. Madison:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

Why shouldn’t we allow Government, from time to time, to act outside of the Constitution? There are those who will point out that we are in dangerous times, and that it is sometimes necessary for the Government to take exceptional measures to ensure our protection.

The answer is fundamental: the Constitution exists to enumerate exactly what Government is allowed to do. In this country We, The People, control all the rights and liberties of our Nation…and we grant to Government some powers from time to time as we choose through the Constitution. From time to time we also remove some of those powers.

What we never do is allow Government to grant unto itself rights, or to strip We, The People of rights.

The Court, in this ruling, reasserts that most basic of American principles—that Government is under the control of The People—that it is not a power unto itself, that its powers derive from the grants we give it…and that every person affected by the Government’s actions has a basic right to contest those actions, whether the Government likes it or not.

This is the fundamental difference between freedom and despotism; and we are the most privileged Nation on Earth for exactly that reason.