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The Great Writ: How Medieval Law Explains the Horror of Guantanamo Bay

05/11/2015 04:17 pm ET | Updated May 11, 2016
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In Mohamedou Ould Slahi's new memoir, he describes the day he stopped answering questions from interrogators in Guantanamo Bay, Cuba, where he has been detained without charge since 2002. Instead, he turned the tables:

"[I]n order to continue my cooperation with you, I need you to answer me one question: WHY AM I HERE?"

When Slahi was allowed to meet with an attorney years later, he learned that "the magic formulation" of his request was a "Petition for a Writ of Habeas Corpus." By translating Slahi's simple question into the Latin phrase "habeas corpus," his lawyer invoked a principle of Western law dating back to the Middle Ages. The medieval history of habeas corpus -- a legal epic that should be as familiar to Game-of-Thrones fans as it is to constitutional scholars -- demonstrates Guantanamo Bay's enduring threat to the rule of law today.

The story begins in 12th century England -- a time when "The Anarchy" divided the realm and noble landowners set off to fight the Crusades, leading to a breakdown in local authority. The Church, meanwhile, created even more chaos with an independent court system that rivaled the King's. One chronicler bewailed this period as "nineteen long winters in which Christ and his saints were asleep."

To bring order to his kingdom -- and expand his power -- King Henry issued in 1166 the "Assize of Clarendon," in which he decreed, "for the preservation of peace and the observing of justice," that "an inquest shall be made throughout the separate counties." The King announced he would send his Justices to every community, where they would gather twelve "of the more lawful men" to report on who had been up to no good. With the help of the local sheriff, the Justices would seize the suspected wrongdoers and put them to trial.

But the King's new system had a problem: What happened if the sheriff arrested outlaws while the Justices were away and unable to pass judgment?

The Assize addressed this possibility, instructing that the sheriff could still detain suspected wrongdoers, but that he also must "send word to the nearest Justice." Then, the Assize specified, the Justices would tell the sheriff a place to bring the men so they could explain "why they were taken." The sheriff, in effect, had to say to the representatives of the law: "You may have the body." Or, in Latin, "Habeas corpus."

This apparently unremarkable rule of procedure formed the basis for The Great Writ of Habeas Corpus, the bulwark of our liberty. Without it, all the "rights" in all the world's constitutions aren't worth a penny, since the government could imprison you, say, for your membership in an unpopular social group or your unpopular speech. It is the writ of habeas corpus that forces the government to justify the legality of your confinement and tethers political authority to the restraints of the law.

For the next several hundred years, the writ grew in power and prestige, and was eventually embraced by the Framers of the United States Constitution, which expressly guarantees the "privilege of the writ of habeas corpus."

That brings us to Guantanamo Bay, our 21st-century island prison. Following the September 11th attacks, the Bush administration created the detention camp, where it claimed the writ of habeas corpus did not apply. The same basic intuition of justice that led Henry II to the write the beginnings of habeas corpus into the Assize should also make clear why this argument is so terrifying. The President was claiming, in effect, he was a sheriff who did not have to explain his arrests to the king's Justices. He was a power unbound by law.

Following a 2008 Supreme Court rebuke of the Administration's position, federal judges reviewed hundreds of habeas petitions filed on behalf of Guantanamo detainees. They found that, in dozens of cases, the government's justifications for holding the men didn't add up and the judges ordered these prisoners released. On appeal, however, every one of those orders has been overturned. As it stands, then, the writ runs to Guantanamo in theory. In practice, however, it remains a zone where the President may detain anyone at his whim.

Mohamedou Ould Slahi's anguished cry, "WHY AM I HERE?," echoes one of the "most celebrated" achievements of Western civilization -- the notion that those who exercise power over us should be held accountable before the law. And yet, the United States government has failed to persuade any judge that Slahi's captivity is justified. Even the military prosecutor in charge of his case concluded that "[t]here really is nothing I know of that you could charge Slahi with."

Slahi and over 100 other men remain at Guantanamo, held indefinitely without effective legal recourse. So long as it remains open, the detention camp poses a threat to liberty around the world, as there is nothing to stop a president from seizing and imprisoning there anyone for any reason at all. Senator Tom Cotton, a Republican from Arkansas, recently declared that "the only problem with Guantanamo Bay is that there are too many empty beds and cells." Nine centuries of Anglo-Saxon legal tradition, it seems, have been forgotten in a single decade.