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.”