This month, the U.S. Supreme Court granted an appeal by Australian, British and Kuwaiti nationals captured during the war on terrorism and being held in detention by the United States at Guantanamo Bay, Cuba.
The two cases, Al Odah v. United States and Rasul v. Bush, were brought before the court by the families of the Guantanamo detainees who have been held for almost two years without access to lawyers or their families. Arguments in the cases will begin early next year, with a decision expected in June.
The sole question before the Supreme Court will be whether U.S. courts have jurisdiction to hear complaints from the detainees, not whether the detention itself is constitutional. If the Supreme Court sides with the government –which contends that the detainees’ status is “constitutionally committed to the executive branch,” according to The New York Times, it not only will tip the balance of power between the two coequal branches of government, it will leave hundreds of men — some of them undoubtedly innocent — stranded in small cells without any means of redress.
Just because these men were captured during times of war should not mean they should lose all rights to due process of law.
The executive branch is relying on a 1950 case to justify denying detainees” access to courts. In Johnson v. Eisentrager, the Supreme Court ruled that the Constitution does not grant rights of personal security or immunity to alien enemies engaged in hostile service against the United States, according to the University of Chicago Law School Web site. The case concerned German nationals held in the custody of the U.S. Army in Germany after being convicted for crimes against the United States by a military commission. Because the military has jurisdiction to punish those guilty of offenses against the rules of war, prisoners outside of U.S. territory have no right to be heard in the U.S. court system.
The U.S. Court of Appeals for the District of Columbia applied this precedent to war on terror detainees in March.
However, there are two major differences between the World War II case and the current one.
First, the naval base at Guantanamo Bay is under the exclusive jurisdiction and control of the United States, and it has been since 1903, according to The Times. It is like a small city, with its own schools, power system and transportation system, so saying it falls outside U.S. jurisdiction seems to be stretching the truth.
Such a policy is ripe for abuse. Anyone held in U.S. custody deserves the protections afforded by the Constitution, especially the right to a fair trial.
Second, the war on terror is not an officially declared war like World War II. To give the executive sole power to determine the fate of foreign nationals detained by the United States during a war with no foreseeable end violates inalienable rights — life, liberty and the pursuit of happiness — that Americans hold dear.
It’s true that the war on terror is different from previous conventional wars. However, just because the world is currently at “war,” does not mean that the U.S. government should allow those in captivity to rot away in a cell without the due process of law they should be guaranteed. To indefinitely hold someone without charges is to sink to the level of America’s foes, who care little for human rights and fairness.
Unless prisoners at Guantanamo Bay are allowed to challenge their detentions soon, this policy will become another embarrassing blot on American history. As Jackson said in his dissent in Shaughnessy v. United States, which upheld the Johnson precedent, “(Due process of law) is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice.”
Jenelle Wilson, The Battalion, Texas A&M University.