The Liberty Papers

The D.C. Circuit Court of Appeals has upheld a law passed by Congress last year which effectively eliminates the right of foreign nationals, or even United States citizens, to have their day in Court if they are held by the American military outside of the United States:

A federal appeals court ruled yesterday that hundreds of detainees in U.S. custody at Guantanamo Bay, Cuba, do not have the right to challenge their imprisonment in federal courts, a victory for the Bush administration that could lead to the Supreme Court again addressing the issue.

In its 2 to 1 decision, the U.S. Court of Appeals for the District of Columbia Circuit upheld one of the central components of the Military Commissions Act, the law enacted last year by a then-Republican-controlled Congress that stripped Guantanamo detainees of their right to such habeas corpus petitions. Lawyers have filed the petitions on behalf of virtually all of the nearly 400 detainees still at Guantanamo, challenging President Bush’s right to hold them indefinitely without charges. Yesterday’s ruling effectively dismisses the cases.

Essentially, the Court held that the protections granted by the Writ of Habeas Corpus do not apply when a person is being held outside the terroritorial jurisdiction of the United States, even if they are being held by American forces.

Effectively, today’s ruling means that the government can hold someone in a prison outside the United States indefinately without trial and without any review by a Judge. Even if that prison is on a military base that has been controlled by the United States for more than a century.

This post sums up the problem with the Court’s ruling quite well:

The court appears to concede that if an alien detainee captured overseas is thereafter detained in sovereign territory, the detainee is protected by a constitutional right of habeas. (See its discussion of the Rex v. Schiever case from 1759, pages 14-15, in which the court entertained the habeas petition of an alien detainee brought to Liverpool.). What this means is this:

Recall that the GTMO detains were all captured halfway around the globe, and then brought to the Western Hemisphere. Thus, the only reason they are not entitled to habeas rights is that their U.S. captors chose to turn left and take them to the U.S.-run facility in GTMO, rather than turning right to go to a U.S. facility in say, South Carolina. Indeed, according to John Yoo’s new book (and other sources), they were taken to GTMO precisely for the purpose of keeping them out of the reach of U.S. courts. Whatever the constitutional rule ought to be for aliens detained near a battlefield half a world away, it seems perverse, to say the least, that so many important constitutional protections should turn on which direction we choose to direct our ships (or planes) carrying detainees a few miles off the Florida coast.

Especially when, as is clearly the case here, the prisoners were taken to GTMO with the specific intent of keeping them out of the reach, and beyond the review, of the Judicial Branch.