A federal appeals court ruled Tuesday that Guantánamo detainees no longer have a right to be heard in court. Unless this decision is rectified by the Supreme Court or by Congress, Guantánamo will once again become a legal black hole. Meanwhile, nearly 400 individuals remain imprisoned without due process.
The court's decision centered on the Military Commissions Act , approved by Congress last year to deprive judges of their power to hear the cases of noncitizens detained at Guantánamo and elsewhere. The principal question was whether the act unconstitutionally suspended the writ of habeas corpus. The court said it did not because the Guantánamo detainees had no right to habeas in the first place. Congress, therefore, had carte blanche to eliminate the detainees' access to court altogether.
History was at the center of the appeals court's decision. Would detainees at Guantánamo have had the right to file habeas corpus petitions when the Constitution was enacted, the court asked? Because they did not, it concluded, they have no right to habeas today.
The Supreme Court has often looked to the rich history of habeas corpus in determining its current scope and meaning. The appeals court, however, misconstrued this history. It not only improperly analyzed cases and other sources but missed the larger picture of how Guantánamo flouts the essence of this centuries-old writ.
Take, for example, the appeals court's treatment of the 1679 Habeas Corpus Act, which imposed strict deadlines on a jailor to respond to a habeas petition filed by a criminal defendant (partly to insure he would receive a speedy trial, a protection denied to all Guantánamo detainees). William Blackstone and Alexander Hamilton praised this statute as a "bulwark of individual liberty" and "second Magna Carta." Yet Judge A. Raymond Randolph, who authored the panel's 2-1 decision, inexplicably transformed this act into an excuse to create law-free zones for the twenty-first century, reasoning that since it would have been impracticable to adhere to those time limits for detainees overseas in the seventeenth century, the writ must necessarily be unavailable to those detained outside our borders today.
The appeals court also referenced the impeachment in 1667 of the Earl of Clarendon, Lord High Chancellor of England, accused of banishing alleged enemies to distant lands to deny them habeas corpus. Remarkably, the court read the prosecution of a high-ranking government official for sending prisoners to rot in secret dungeons to justify eliminating habeas corpus for any prisoner who has the misfortune of being confined overseas. As the Supreme Court concluded in its 2004 decision in Rasul v. Bush, habeas was traditionally available where the writ's command to justify a prisoner's detention could be enforced--i.e., at Guantánamo. Clarendon, by contrast, was punished for bringing prisoners to places that made such enforcement impossible four centuries ago. Hardly a compelling precedent to justify the existence of a prison that England's current Lord Chancellor called  a "shocking affront to the principles of democracy."
The appeals court also claimed no case showed habeas was available in a territory over which the government was not sovereign. (Under a lease agreement, the United States maintains total and exclusive control over Guantánamo in perpetuity, but Cuba formally retains sovereignty over the territory.) But the court ignored the ample historical evidence of the writ's availability in far-flung territories of the British Empire, like India, where the test was actual control, not formal notions of sovereignty easily manipulated by executive officials seeking to evade judicial review. Indeed, the available evidence cuts the other way: No common-law court ever ruled that the writ was unavailable to prisoners detained in a territory under the crown's exclusive control and authority.
In addition to misconstruing history, the appeals court sought to freeze habeas corpus in time, making the United States' compliance with human rights contingent on the state of affairs more than 230 years ago. But, as dissenting Judge Judith Rogers noted, the Constitution protects the writ, at a minimum, as it existed in 1789, thus allowing for its ability to adapt to new situations while maintaining its essence as a check against arbitrary and unlawful executive detention.
It is striking that a decision purportedly grounded in history could remain so oblivious to the core purpose of habeas corpus: preventing the creation of prisons beyond the law. The court's decision denies habeas to any noncitizen merely because he is detained outside the United States. It thus creates what Justice Sandra Day O'Connor described as a "perverse incentive" to shuffle individuals around a global detention system like pawns to avoid judicial review. The court's decision will not only perpetuate Guantánamo but could spur the creation of other lawless enclaves, like Bagram Air Base  in Afghanistan.
Why does all this matter? History is again instructive, showing how the government is prone to make mistakes when it detains individuals based upon suspicion amid public insecurity. It is during these times that habeas performs its most vital role by allowing judges to examine the factual and legal basis for a prisoner's detention. As historian Paul Halliday has pointed out, judges released 82 percent of prisoners jailed on charges of treason and sedition during the turmoil in England during the late seventeenth century, finding the detention unjustified. The Bush Administration's relentless effort to avoid habeas review at Guantánamo suggests it too has something to hide.
If we are to take the Constitution's commitment to habeas seriously, we must recognize that it does not allow the government to lock up prisoners without judicial review. The king could not do it at the Tower of London and the President cannot do it today at Guantánamo.