What gives the government the right to arrest you and imprison you indefinitely without offering a reason or opportunity to appeal? The answer, in the United States, is: Nothing gives the government that right. It is hard to see what is left of American freedom if the government has the authority to make anyone on its soil -- citizen or noncitizen -- disappear and then rule that no one can do anything about it.
Or so we once thought. But the Bush administration -- whose convoluted memos on defining torture now rank with Bill Clinton’s definition of sex -- says Congress gave it exactly this power. And when was that? Soon after Sept. 11, 2001, Congress passed a two-line resolution authorizing the use of military force against “nations, organizations or persons” engaged in terrorism. We would like to hear from any member who intended by this vote to repeal the Bill of Rights.
Shockingly, though, in rulings issued Monday about the rights of terror suspects being held at Guantanamo Bay, Cuba, and in a military brig, four justices of the U.S. Supreme Court bought the administration’s argument. In better news, a 6-3 majority flatly rejected the administration’s arguments that the prisoners were not even entitled to a court hearing. One of the plaintiffs -- an American citizen named Yaser Esam Hamdi, who was captured in Afghanistan -- has been held in a military brig with no charges brought against him for nearly three years.
The court said that even the Guantanamo detainees who were not citizens were still “persons” under the Constitution. That gives them the right to challenge their detention, with a lawyer to help them. Even Chief Justice William H. Rehnquist couldn’t swallow the administration’s notion that these prisoners had no rights at all.
President Bush and his administration say: Look, there’s a war on. And anyway, the United States is not some Latin American dictatorship of the 1970s; we can trust our government not to abuse the extraordinary power it claims. But this administration’s record of incompetence and callousness does not inspire us to lightly kiss away our constitutional protections.
Brandon Mayfield, an Oregon lawyer, was arrested by the FBI in connection with the Madrid train bombings in March. His fingerprints were supposedly on a bag of detonators found in Spain. Having been tarred as a murderer and terrorist by his own government, he was released with little more than an “oops.” More than two dozen Guantanamo prisoners were released earlier this year after Pentagon lawyers decided they were not terrorists after all. Meanwhile, they had been imprisoned for two years.
The whole point of the substantive freedoms and due process guarantees in the Bill of Rights is that freedom should not rest on any government’s claims of benevolence. Now that the Guantanamo detainees have been given the right to a hearing, Americans will learn a bit more about what has happened there. As with the abuses at Baghdad’s Abu Ghraib prison, it’s likely that the more they learn, the less they’ll like it.