Guantanamo and the rule of law.

By Douglass W. Cassel Jr.; Cassel

The highest court of the world's oldest and most powerful democracy hears many cases raising important questions of fundamental rights. Its death penalty decisions define the right to live. Its judgments on criminal procedure shape the right to fair trial. Its interpretations of the First Amendment mark the boundaries of lawful political debate.

Rarely, however, does our Supreme Court come to grips with an even more basic question: the rule of law -- without which no rights are safe. Few cases ask whether our government is ruled by laws or by men. Whether legal rights are guaranteed by enforceable checks and balances or left, instead, to the good faith of presidents and generals.

Fortunately, when those rare cases have arisen, the court has stood fast for the rule of law.

Two centuries ago Chief Justice John Marshall interpreted our Constitution to give this nation -- and by example the world -- the safeguard of judicial review of the constitutionality of government action. Three decades ago, when special prosecutor Archibald Cox subpoenaed the Watergate tapes, the court made clear that not even the president was above the law.

Another such case now awaits decision. Last week the court heard oral arguments in a case brought by families of men imprisoned for over two years at the U.S. Naval Base in Guantanamo Bay, Cuba. (I serve as consultant to their lawyers.) Like nearly 600 other prisoners at Guantanamo, they are being held without charges, hearings or lawyers. The government claims the right to imprison them, with no due process of law, until the "war on terrorism" ends -- whenever that may be.

The government says the prisoners are all "unlawful enemy combatants," captured in or near Afghanistan. Their families say they are all innocent civilians, caught up in the fog of war, some of them picked up by locals in return for bounties. The issue before the court is whether our courts have any role in this dispute: Do they have jurisdiction to hear habeas corpus petitions challenging the lawfulness of these imprisonments?

The issue is not which court should hear a particular case. If American courts cannot hear these claims, no court can. We have occupied Guantanamo for over a century. Our lease with Cuba gives us complete and exclusive jurisdiction. Cuban judges cannot so much as set foot on our base.

So the real issue is whether our military -- in depriving the prisoners at Guantanamo of their liberty for years on end -- acts under the rule of law or of men. As Justice Stephen G. Breyer put it during the oral arguments: "It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want ... without a check."

The government argues that judges should not meddle with military decisions. But the prisoners at Guantanamo are far removed from any battlefield.

The government also argues that federal judges should not undertake to review each individual case of a prisoner captured in war. But as Breyer pointed out during the arguments, that question need be faced only once courts take jurisdiction. They can then shape procedures and remedies to avoid undue burdens on the military or the courts.

For example, as the families' lawyers propose, courts could simply order the military to follow procedures under the Geneva Conventions, which require hearings before a "competent tribunal" whenever there is "any doubt" about the status of a prisoner. Our armed forces have held thousands of such hearings, before military tribunals, during the Vietnam War, the first Gulf War and the current war in Iraq. As a result, hundreds of innocent civilians have won their freedom.

During the arguments Justice Antonin Scalia suggested that any solution here is not for the courts but for Congress. If the people are concerned about due process at Guantanamo, he proposed, let their elected representatives fix the problem.

That ignores the historic role of the judiciary. The Supreme Court has long made clear that one of its roles in our constitutional scheme is to protect unpopular individuals and minorities from majoritarian prejudice. One can hardly imagine a more unpopular minority than the foreign nationals at Guantanamo who are accused of being terrorists.

And as Justice Anthony Kennedy observed, the habeas corpus statute says nothing about "citizens." For centuries English and American courts have granted the writ to protect any human being unlawfully imprisoned by government. While captured enemy combatants have no right to habeas corpus, the factual issue here is whether the prisoners at Guantanamo are even combatants, let alone enemy combatants.

The justices' questioning at oral arguments did not clearly show their hands. A decision, expected by June, could turn on some technical point without reaching the larger issues. But let us hope that the court will live up to its historic role as guarantor of the rule of law. To permit the military to operate what former federal judge John Gibbons, arguing for the families, called a "lawless enclave" at Guantanamo, would be a dark day not only for our country but for human rights in the world.

[Source: Chicago Daily Law Bulletin, 26Apr04 - Human Rights By Douglass W. Cassel Jr.; Cassel is director of the Center for International Human Rights at Northwestern University's School of Law, where he also serves as a clinical associate professor]

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