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IPFS News Link • Guantanamo Bay

Guantanamo: A Constitutional Debacle

• By Andrew P. Napolitano

Bush made the case that torture and confinement at the U.S. Naval Base at Guantanamo Bay would allow the government to do its job.

He boasted that the Constitution shouldn't restrain him, federal laws wouldn't apply, and federal judges couldn't interfere.

He was, of course, wrong on all counts. The Supreme Court ruled on six Gitmo cases; and the government lost five. In the case in which the government prevailed, the court ruled that the detainee filed his complaint in the wrong city.

The five cases that the government lost established that federal courts do have jurisdiction over the place where the government goes for more than just a fleeting moment. The court knew that British kings would often have prisoners whom they wished to torture or detain without trial brought to foreign colonies for those purposes. The Framers of the Constitution abhorred that practice and wrote the Constitution so it wouldn't happen here.

As a result of the five Supreme Court rulings, the basic rights that all persons have who are confined anywhere by the government must be recognized and honored at Gitmo. This is so because the detainees are persons and their rights are natural to humanity. It is also because those rights are spelled out in the Constitution, without distinction between good persons or bad persons, Americans or foreigners, persons in the U.S. or outside of it.

Stated differently, all human beings confined by the government have the right to due process, no matter where they are confined. This means they must be given notice of the charges against them, they have a right to remain silent, to the services of a lawyer, to confront the evidence against them, to call witnesses in their own behalf and to challenge the government's evidence.