02/24/2007 10:39 am ET | Updated May 25, 2011

"A More Dangerous Engine of Arbitrary Government"

The Suspension Clause of Article 1 of the United States Constitution 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 bulwark of Anglo-American law. The writ enables an individual who has been detained by government officials to ask a court - an independent branch of the government - to determine whether his detention is lawful. Without the writ, a king or a president could order the indefinite imprisonment of anyone he wants, at any time, for any reason. This is why the "Great Writ" was so fundamental to the framers of our Constitution.

Since 9/11, the writ of habeas corpus has become the subject of much attention. Individuals detained by our government at Guantánamo Bay, alleging they have been detained unlawfully, have filed habeas corpus petitions in federal courts. Initially, the Bush administration argued that American courts had no jurisdiction to hear such cases because Guantánamo Bay is outside the territorial boundaries of the United States.

In two decisions, in 2004 and 2006, the Supreme Court rejected this argument, holding that the federal habeas corpus statute authorized American courts to hear such cases, even though Guantánamo Bay is not in the United States, because of the nature of America's long-standing control over Guantánamo Bay. In response to these decisions, last year, at the behest of the Bush administration, the Republican-controlled Congress amended the habeas corpus statute to strip federal courts of any jurisdiction to hear habeas corpus petitions filed by individuals detained in Guantánamo Bay.

This state of affairs is a disgrace to the United States. If individuals are in fact being held unlawfully, why should the government prevent them from challenging the legality of their detentions? Adding insult to injury, this week a federal appeals court in Washington, D.C., by a two-to-one vote, held that this amendment to the habeas corpus statute is not unconstitutional.

All three judges participating in the decision agreed that the conditions specified in Article I of the Constitution for the suspension of habeas corpus (rebellion or invasion where the public safety requires it) are not satisfied. Nonetheless, the majority held that the 2006 amendment is constitutional.

It is instructive to note that according to John Yoo, who participated in many of the key Bush administration legal decisions that shaped the war of terrorism, the administration selected Guantánamo Bay for its detention of suspected "enemy combatants," rather than some prison facility within the United States, precisely in order to prevent courts from exercising habeas corpus jurisdiction and thus from deciding whether individual detainees were being held unlawfully. When the Supreme Court twice rebuffed this cynical effort to manipulate access to habeas corpus, the Republican-led Congress amended the habeas corpus statute to enable the administration to insulate its actions from judicial review.

In the February 20 decision, the two judges in the majority invoked a few scattered precedents from more than two centuries ago to support their conclusion that the privilege of the writ of habeas corpus does not reach non-citizens held outside the territorial boundaries of the United States unless Congress authorizes courts to exercise such jurisdiction.

As a purely technical matter, this argument, like the competing argument of the dissenting judge, is plausible. The historical evidence on the scope of the Suspension Clause is scant and can rationally be interpreted either way. But we are not dealing here with a technical interpretation of the rule against perpetuities. We are dealing with one of the most fundamental constitutional principles of Anglo-American jurisprudence: The right of an individual to challenge the legality of his detention in a court of law. This is due process of law at its most elemental. It is what the United States is supposed to stand for.

The Supreme Court will ultimately resolve this question. In the meantime, we might keep in mind the words of Alexander Hamilton, who put the point well in the Federalist Papers: "To bereave a man of life . . . without accusation or trial would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, less striking, and therefore a more dangerous engine of arbitrary government."