Can a US court declare that a group of human beings have no rights and can be enslaved or abused at will with no legal recourse? That question will soon be coming before the Supreme Court.
In the last days of 2006, the GOP-led Congress passed the Military Commissions Act, which among other things stripped the right of habeas corpus from the captives held at Guantánamo. In late February the District of Columbia Court of Appeals upheld that part of the law. Now both the Center for Constitutional Rights , which represents the captives, and the Solicitor General's Office have asked the Court for expedited review at its next conference on March 30.
Before they make a final decision, the Justices should consider the cases of two of the Court's most famous imprisoned petitioners: the freed slave Dred Scott  and the captive voyagers on the slave ship Amistad .
The Dred Scott decision is often regarded as the most shameful in the history of the Supreme Court. Scott was held as a slave even though his late owner had promised to free him at his own death. Scott's petition for a writ of habeas corpus was granted and upheld by the lower courts. But it was overturned by the Supreme Court in 1857 on the grounds that a Negro has "no rights which the white man was bound to respect.... They are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States."
A century and a half later, in Boumediene v. Bush and Al-Odah v. United States, the DC Court of Appeals has similarly overturned writs of habeas corpus granted by lower courts on the grounds that this fundamental right can be denied to a specified group of human beings. The court ruled that the Military Commissions Act of 2006 strips Guantánamo detainees of the right to challenge their detention in US federal courts. Hina Shamsi, deputy director of Human Rights First's Law and Security Program, explains it this way: "The Court of Appeal's ruling runs counter to one of the most important checks on unbridled executive power enshrined in the US Constitution: the right to challenge imprisonment in a full and fair proceeding. If allowed to stand, this ruling would permit the government to hold prisoners, potentially indefinitely, without having to show to a court of law why the person has been detained."
Before the Justices risk going down the shameful road to a modern-day version of the Dred Scott decision, they should also consider the landmark decision from an earlier struggle for human rights--the 1841 Amistad case, restored to our national memory by Stephen Spielberg's movie Amistad.
In the Amistad case, the Supreme Court courageously held that human rights and the rule of law must apply to captives who had been seized in Africa and imprisoned in the United States.
The Amistad captives were mostly Mendi people--men and children abducted in their homeland of Sierra Leone, shipped to Cuba and sold as slaves. They revolted, seized control of the Amistad and sailed up the Atlantic coast towards New England and they were captured by the US Navy and imprisoned in Connecticut. The US Attorney General--an appointee of President Martin Van Buren, who curried favor with the Southern slaveocracy--demanded that the courts turn them over for delivery to Spanish authorities--even planning to send them on an official US government ship so Connecticut courts could not intercede with a writ of habeas corpus.
The Amistad case and today's Guantánamo cases raise the same two fundamental questions of human rights and the rule of law: Does the executive branch of government ever have the authority to seize people, imprison them and abuse them with no appeal to a court? And does the executive ever have authority to act without any possibility of review by the judiciary? In the Amistad case, the Supreme Court answered no to both questions.
The executive's position in the Amistad case met withering scorn from former President John Quincy Adams--splendidly portrayed in Spielberg's movie by Anthony Hopkins--who defended the Amistad captives before the Supreme Court.
Adams charged that the government was depriving the captives of the most fundamental rights. "Have the officers of the US Navy a right to seize men by force...to fire at them, to overpower them, to disarm them, to put them on board of a vessel and carry them by force and against their will to another state, without warrant or form of law?... Is it for this court to sanction such monstrous usurpation and executive tyranny?"
Adams condemned the Van Buren Administration's attempt to usurp the authority of the courts. Perhaps, Adams conceded, it may be easy for the royal governor at Havana "to seize any man" and "send him beyond seas for any purpose." But "has the President of the United States any such powers? Can the American executive do such things?"
Adams argued that overriding the jurisdiction of the courts "would be the assumption of a control over the judiciary by the President, which would overthrow the whole fabric of the Constitution; it would violate the principles of our government generally and in every particular."
The Supreme Court ruled that US courts were bound to protect the rights of the Amistad captives. The rights of the case "must be decided upon the eternal principles of justice and international law." To rule otherwise would "take away the equal rights of all foreigners, who should contest their claims before any of our courts, to equal justice," or "deprive such foreigners of the protection given them" by "the general law of nations."
In 1841 the Supreme Court took a bold stand against executive tyranny and for human rights and the rule of law. Now the Court is again being asked whether the United States will remain a government under law or whether we allow it to become a presidential dictatorship. The pending action in the Guantánamo cases will test whether it wishes to be remembered along with the authors of the monstrous Dred Scott decision or rather with the friends of freedom who defended the human rights of the Amistad captives.