Prisoners of the rule of law
TUESDAY'S FEDERAL court of appeals ruling that ordered the dismissal of the lawsuits by Guantanamo detainees ignored the US Constitution and Supreme Court precedent. The Supreme Court should grant expedited review and, as quickly as possible, make it clear that the federal courts must hear the allegations by Guantanamo detainees that they are being held in violation of the Constitution and federal treaties.
Detainees started arriving at the US facility at Guantanamo Bay, Cuba, more than five years ago. Almost immediately, habeas corpus petitions were filed in federal court on their behalf arguing that they were being held illegally.
The government moved to dismiss the detainees' habeas corpus petitions and argued that federal courts lacked jurisdiction to hear them. In June 2004, the Supreme Court, in a 6-3 decision, rejected this position and held that the federal courts may hear the lawsuits of those imprisoned in Guantanamo.
The government then tried to have the detainees' cases dismissed on the grounds that the Constitution and treaties, such as the Geneva Conventions, did not apply in Guantanamo. In January 2005, two federal trial court judges ruled on this in separate decisions; one sided with the government and the other with the detainees. Both cases were argued in the US Court of Appeals for the District of Columbia Circuit on Sept. 8, 2005. On Tuesday, the court decided and ordered the dismissal of all the lawsuits. The court, in a 2-1 decision, held that the Military Commissions Act of 2006 barred federal courts from hearing habeas corpus petitions by those detained as enemy combatants.
It is unconscionable that it took more than two years from the time of the trial court decisions for the appeals court to rule on the cases. When human beings are imprisoned and seeking due process, time is of the essence. Some who are held in Guantanamo may be wrongly incarcerated. Every day lost can never be restored.
Moreover, Tuesday's decision fails to enforce a crucial constitutional provision. Article I, Section 9 of the Constitution says that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety shall require it."
The Military Commissions Act of 2006 clearly violates this provision because it entails Congress suspending, indeed eliminating, the ability of those held as enemy combatants to file a habeas corpus petition in federal court.
The court of appeals gave great weight to the fact that Guantanamo is not within the United States and is under the sovereignty of Cuba.
In 2004, the Supreme Court rejected this argument and Justice Anthony Kennedy, in a separate opinion, emphasized that Guantanamo is functionally under US sovereignty. A website maintained by the Navy has a book on Guantanamo that declares it is under US sovereignty and control. Surely no one believes that Fidel Castro could open the prisons at Guantanamo.
Most of all, though, the court of appeals missed the point: No one should be imprisoned, let alone for years, without meaningful due process. The ruling means the federal government conceivably can keep detainees locked up for the rest of their lives without any court hearing their lawsuits.
The ideal solution would be for Congress to enact a statute overturning the restrictions on habeas corpus jurisdiction contained in the Military Commissions Act. Failing that, the Supreme Court should immediately grant review and hear the cases as soon as possible.
Usually, if the Supreme Court grants review in a case in February or March, the matter is not heard until October. Here, the court should decide to hear the cases within the next few months and issue a decision by the end of its term in June.
US conduct at Guantanamo is drawing the ire of the world. This is because the United States is acting as if no law applies to its conduct at the facility. Such lawless government actions cannot be tolerated in a nation that believes in the rule of law.
Erwin Chemerinsky is a professor of law and political science at Duke University and co-counsel for Salem Gherebi, a detainee at Guantanamo. 
