American Proscenium

The Guantanamo Question

Who should determine whether alien enemy combatants captured in Iraq and Afghanistan are properly in the custody of the U.S. government at the U.S. Naval Station at Guantanamo Bay?  The President and Congress have set up special military tribunals to make such determinations, but some federal judges and some critics of President George W. Bush believe that the President’s and the military’s actions in this regard must be subject to review by any of the federal courts.  In Article I, Section 9, of the Constitution, a famous provision provides that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

The writ of habeas corpus is a centuries-old device from English and American law that guarantees citizens a proceeding to determine if they are being illegally incarcerated by their government.  It is not clear, however, whether constitutional protections ought to be extended to alien enemy combatants.  It would be reasonable to believe that constitutional guarantees are only for the people of the United States, who purportedly framed and ratified the document, as its first three words suggest.

Nevertheless, in recent decades, the Supreme Court has, more or less, vaguely suggested that habeas corpus and other constitutional rights ought to be considered as basic human rights...

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